10 Nov 2015 : Column GC445

Grand Committee

Tuesday, 10 November 2015.

Education and Adoption Bill

Education and Adoption Bill

Committee (2nd Day)

3.30 pm

Relevant document: 10th Report from the Delegated Powers Committee

The Deputy Chairman of Committees (Lord Bichard) (CB): Welcome to the Grand Committee. If there is a Division in the Chamber, the Committee will adjourn for 10 minutes.

Clause 6: Interaction between intervention powers

Clause 6 agreed.

Amendment 15

Moved by Baroness Pinnock

15: After Clause 6, insert the following new Clause—

“Scrutiny of education provision

(1) The Education and Inspections Act 2006 is amended as follows.

(2) After section 70C insert—

“70D Scrutiny of education provisions

(1) This section applies where more than 10 per cent of schools in a local education authority is eligible for intervention under section 60B.

(2) The relevant local authority may establish, under section 21(2) of the Local Government Act 2000 (overview and scrutiny committees), a committee of that authority to review and scrutinise matters relating to the provision of education in such schools in the authority’s area, and to make reports and recommendations on such matters in accordance with regulations under this section.

(3) Regulations shall make provision—

(a) as to the matters relating to the provision of education in such schools in the authority’s area which the committee may review and scrutinise;

(b) as to matters relating to the provision of education in such schools in the authority’s area on which the committee may make reports and recommendations to local Academy sponsors;

(c) as to information which local Academy sponsors must provide to the committee;

(d) requiring Regional Schools Commissioners to attend before the committee to answer questions.””

Baroness Pinnock (LD): First, I apologise to the Committee for not being able to attend the Second Reading of the Bill because of diary clashes.

My noble friends Lord Storey, Lady Sharp of Guildford and I have tabled this amendment to improve the local and democratic accountability of schools in a local community for a number of reasons. The first reason is that school funding accounts for around 50% of local authority spending for councils that have responsibility for education. The second reason is that, by their very nature, schools reflect the communities they serve and parents expect there to be a local process of oversight and a local means of expressing any concerns. The third reason is that there have been a number of high-profile failures of financial governance

10 Nov 2015 : Column GC446

in the academy sector. For example, there have been allegations relating to fraud in a number of schools in Bradford and County Durham. The Education Funding Agency has issued financial notices to improve to several academy chains, including the Academies Enterprise Trust in 2014. The fourth reason for tabling this amendment is that multi-academy trusts currently seem to be the favoured way forward, but they are accountable for their strategic and financial performance only to the Education Funding Agency and the Secretary of State. The fifth reason is that governance models in multi-academy trusts ensure that the sponsor or sponsoring body controls the trust. I am sure the Minister will have seen the publication by the New Schools Network.

Multi-academy trusts are governed by a trust body and by so-called directors of the trust who take the strategic and financial decisions for the schools under their control. On the whole, multi-academy trusts set up local governing bodies to do the day-to-day running and there is no parental or staff involvement until this lower level of governance. The document recommends that there should be one member of staff and two parents on those bodies and that they should not have any oversight of the financial controls of the trust and therefore of the school in which they serve. The crucial thing in this model is that decisions on school budgets are in the hands of the directors of the trust and that the trust members are self-appointed and accountable for their actions only via agreements signed with the Department for Education and the Education Funding Agency.

In this model there is no accountability to the local community and to parents. This amendment seeks to address those serious concerns. There is currently a vacuum of democratic accountability regarding the attainment and achievement of schools and, even more importantly, for the attainment and achievement of the children in those schools. Those matters are no longer within the remit of the local authority. As a serving local councillor I can say that when parents approach me with concerns about their children’s academy school’s ability to achieve realistic opportunities for them, it is difficult to address those concerns other than by going through the very processes that created them in the first place—that is, the school’s governing body or trust.

In this amendment we propose to put matters right. In 2006 the Government established local authority health scrutiny committees. The government guidance for those committees, which is on the GOV.UK website, is very clear about their purpose. I think that the purposes for which health scrutiny committees were established could serve in establishing parallel scrutiny committees for schools within the local authority area. The government guidance for local authority health scrutiny committees, available on the GOV.UK website, states:

“The primary aim of health scrutiny is to act as a lever to improve the health of local people, ensuring their needs are considered as an integral part of the commissioning, delivery and development of health services … Health scrutiny is a fundamental way by which democratically elected local councillors are able to voice the views of their constituents, and hold relevant NHS bodies and relevant health service providers to account”.

10 Nov 2015 : Column GC447

It seems to me that by substituting “schools and education” within that guidance we have a prime way of letting local communities call to account all schools, particularly academies because there is a big vacuum in accountability for local academies. In the nearly 10 years since the committees were introduced they have been extraordinarily effective in bringing together local democratically elected representatives, health commissioners and CCGs, representatives of the acute trusts in the district and the public health people to scrutinise health issues. Together they have been able to resolve some of the difficult challenges of providing health services in the community. I would attest that this same model could work really well for local education.

The guidance goes on very helpfully to demonstrate how scrutiny committees can add value by bringing together partners providing, in this case, health services. I suggest that it could also be done for education in a district. It says:

“A greater emphasis on involving patients”,

and for education that could be parents,

“and the public from an early stage in proposals to improve services”.

Engaging people has got to be a positive. It continues:

“The work of health and wellbeing boards”,

in this case we could bring in the education scrutiny committee,

“bringing together representatives of the whole … system”.

This will therefore add value to the decisions made. It will provide an opportunity for a public, open, transparent and democratic hearing of a local community’s concerns about local schools.

One key to success in a school is harnessing the support of the local community that it serves. Anyone who has ever been involved in education, as I have, knows that good schools are supported very well by their local community. One indicator that a school is beginning to fail is when the local community starts taking support away from it.

The risk with the multi-academy trust model is that schools will become more remote from the communities they serve. I suggest that a successful multi-academy trust would welcome the opportunity of a public platform where it could demonstrate transparency in its decision-making and respond to questions about its performance from local people. With that in mind, I hope that the Minister will be able to respond positively to this proposal. I beg to move.

Lord Hunt of Kings Heath (Lab): My Lords, I very much welcome the amendment of the noble Baroness, Lady Pinnock. I am not sure whether her suggestion is exactly right but the principles that she raises are very important. They concern local democratic accountability and they also concern what she described as flaws in the governance structure of academies, particularly multi-academies. I share her view on both points.

The noble Baroness suggested that we look at the health model and I think that she is right. One thing that puzzles me about academy trusts is that they do not seem to allow for a direct relationship between the governance and the parents, except in the circumstances

10 Nov 2015 : Column GC448

that she has described. I suggest that we look at NHS foundation trusts, which after all were developed at around the same time.

I know that the education department is very isolated in Whitehall and this is yet another example of that, but the ownership of an NHS foundation trust is rooted in patients, staff and members of the public, because they become members without paying any cost and it is the members who elect the governing council. The governing council, in turn, appoints the non-executives and the chairman to the board and approves the appointment of the chief executive. The board of directors is a statutory body. It is the board that you sue and harangue if things go wrong, but it is accountable locally through a very well-ordered structure and it carries with it a much better sense of accountability. There is a clear line of responsibility with a proper board of directors. There is no problem about its legal responsibilities and it is accountable. When I chaired a foundation trust, the fact that I had to appear before the governors’ council every month or so to explain the trust’s problems and what we were doing about them was a very good discipline. It was not a very easy discipline—I confess that I did not enjoy doing it—but it was an immeasurably strengthening exercise, and I think that the noble Baroness is trying to get at that in part of her amendment.

The noble Baroness also raises the whole question of the local authority’s role in the education policy that the Government are developing. I refer back to a point raised by my noble friend Lord Knight during our first day in Committee. He basically said that if the Government want all schools to be academies, why do they not just say so and bring in legislation? Why do we have to have this rather obscure, backwards way of academising all schools? That is basically dishonest. I hope that the Minister might just praise a maintained school—he has four hours in which to do so but I have yet to hear him ever praise a maintained school. Clearly, he has an ideological problem with maintained schools. That is why we remain suspicious of the Bill and some of the motivations behind it.

3.45 pm

I would like to ask the Minister a straight question. In November 2010, we had the White Paper of this Government—although no doubt they will say that it was the coalition Government’s—which said:

“Local authorities will, over time, also play a role in commissioning new provision and overseeing the transition of failing schools to new management. We will consult with local authorities and Academy sponsors on what role local authorities should play as strategic commissioners when all schools in an area have become Academies”.

Can I now take it that, essentially, that White Paper is withdrawn and the truth is that the Government see no role for local government whatever in education in the future?

I come now to the letter that the noble Lord wrote to the noble Lord, Lord Lang, the chairman of the Constitution Committee, on 5 November. That letter was circulated just before our sitting today. The criticism that the Constitution Committee makes is that the provisions of the Bill, in respect of both education and adoption, go against the Government’s localism agenda.

10 Nov 2015 : Column GC449

That is something that I raised last week, only to be told by the Minister that I was enunciating political theory. I thought that what I was talking about was the Government’s localism policy. If the noble Lord had read the letter that was written to him by the chairman of the Constitution Committee, he would have noted the speech of his right honourable friend the Chancellor of Exchequer, who said that,

“we all know that the old model of trying to run everything in our country from the centre of London is broken”.

He was speaking in Manchester; it was all about the northern powerhouse and the agreement and memorandum of understanding reached between himself and the combined authorities in Greater Manchester.

The Constitution Committee has pointed out that there seems to be huge tension between the Government’s overall policy on devolution and the Education Department’s approach to schools. The noble Lord, Lord Nash, in his remarkable letter to the noble Lord, Lord Lang, says that, in fact, the Constitution Committee is wrong and apparently this Bill is entirely consistent with the Government’s localism agenda. You could have fooled me. Decisions about school improvement are apparently going to be made by people with a real understanding of local needs and priorities, but these people are the regional schools commissioners—who do not, I think, have any sense of local accountability, do they? I rather thought that their only accountability was to Ministers. I do not see how that fits with the localism agenda. The noble Lord, Lord Nash, goes on to say that the proposals in the Bill are in keeping with the Government’s wider devolution commitments. The RSCs certainly do not have devolved responsibility; they have delegated responsibility, or have I got that wrong? There is a huge difference between devolvement and delegation.

I come back again to the localism agenda. In Greater Manchester, and potentially Cornwall, the whole of health and social care is going to be handed over by central government to the combined authorities at local government level. So why is education being completely ring-fenced from any of those factors? It is a puzzle to me.

Baroness Hughes of Stretford (Lab): As well as the fact that, on this particular point, the Education Department seems wholly out of step with the general direction of government policy—which, as my noble friend said, is transferring power from central government to the local combined authorities—the department’s stance undermines the very policy itself. The overarching remit of the combined authorities is to develop the economies of their city or region and translate that growth into opportunities for all their citizens, particularly the most disadvantaged. Surely education has to be part of that agenda of economic growth. Does my noble friend agree?

Lord Hunt of Kings Heath: This is another puzzle because the terms of the agreement with Greater Manchester focus on growth in the economy and specifically mention the skills agenda. I have listened to the Government talk about the issue of skills—albeit at the same time as destroying further education, which of course is where most of these skills are taught; but we will leave that aside for the moment—and

10 Nov 2015 : Column GC450

I am absolutely amazed because the argument they put forward is that while skills are crucially important, the role of schools is to make sure that, when they come out, young people are ready to go into the workplace; that is, those who do not go into higher or further education, if any is left when they reach the age when they move on from school.

Why on earth is education being taken out of this really exciting development? I am enthusiastic about what is happening in Greater Manchester, and potentially it is hugely exciting, but I just do not understand why education is being left out of it. This is but one example of how, when the Department for Education says that it is consistent with the localism agenda, it is, frankly, completely unbelievable.

The Earl of Listowel (CB): My Lords, I am sorry that I was not able to be present in Grand Committee last week, but I have read with interest the Committee report. Two things come to mind in relation to this debate. The first is that I am most grateful to the Minister for organising an extremely helpful meeting with head teachers and regional schools commissioners. At the meeting I raised a question about local accountability which followed from our debate at Second Reading. On the question of regional accountability, I put to a regional schools commissioner the case that while it is important to improve academic outcomes for young people, there may be a reason to override the local interest of parents in their schools. I hope that I am paraphrasing him correctly, but he said that it is really important to bring the local community with one, which seems to support the notion of the noble Lord, Lord Hunt, and others that if one is to have a successful school, one needs to bring the local community on board as far as possible.

The second point I want to raise is that, having read the Hansard report of the previous sitting, I am concerned by the Government’s focus on a very narrow assessment of education; that is, on academic attainment. Of course it is extremely important that our children should do well academically so that they leave school being able to read and write and are ready in terms of employment, and that is important to their parents as well, but as was made clear in that debate, children need a rounded education. Some children in particular benefit from an education which perhaps does not emphasise academic attainment so much but allows them to excel in sport and vocational attainment in other areas. My sense is that we need to allow some young people to fail and fail and fail again. Young people in care in particular may do poorly in terms of their academic attainment while they are at school, but many of them will do well in their early 20s or even their late 20s. If one puts great pressure on schools to ensure that all children do well academically, the risk is that those children who do not have so much academic capacity may be excluded, be given less attention, or to some degree will be seen as an inconvenience.

Perhaps that is an argument for giving local authorities and local bodies more influence over and supervision of what goes on in academies and elsewhere. The people in Manchester may think, “Well, in this area we have a particular interest in vocational success and we would like to see our schools equipping our children

10 Nov 2015 : Column GC451

to enter apprenticeships”. I am probably not expressing myself well. I think that my chief concern arose when I read about the new pressures being put on head teachers to ensure that children do well academically because of the emphasis that the Government are placing on this. I worry about those children who may not have so much academic potential but do have potential in other ways. Perhaps the amendment that has been put forward will allay some of those concerns.

Lord Sutherland of Houndwood (CB): My Lords, I apologise for not being here in the Committee’s session last week. It was for medical reasons—and my experience has not filled me with either enthusiasm or confidence that importing wholesale from the health service will solve all our problems. However, there are some very good individual doctors in the system, which is why it works.

To go to the challenge put to the Minister about maintained schools from the noble Lord, Lord Hunt, I spent this morning with seven head teachers from maintained primary schools in the most difficult areas of inner London. I have no doubt that they are doing a terrific job. I agree that there are some excellent maintained schools doing an excellent job. Some of them even refer to the good partnerships with local academies which they hope will develop. That is the other side of the picture.

However, I would make two or three quick comments. When I hear the expression “democratic accountability”, the philosopher in me wants to write three articles to try to clarify what that means. The Committee should not worry, for I am not going to try to do that now, but it is a shibboleth at times. At other times it is an important use of language, just as talk of human rights is, but sometimes it covers a multitude of uncertainties and unclarities. I do not deny that it is important but here, for example, we have to distinguish between accountability for financial systems and governance—one kind of accountability that is not necessarily for a public committee; I would rather have a high-powered team from PricewaterhouseCoopers or some such going in to inspect them and report back—and the separate form of accountability which is necessary for educational practice. Parents and teachers no doubt have important things to say but it must never be forgotten that at least half of those, possibly both, are interested parties.

I come to the nub of what I want to say. The problem that the Bill is facing up to is essentially a question of dealing with what has arisen in schools that are currently maintained under the local authority system. If that is so, just recreating it without modification will not do the job. We need more subtlety and sophistication in trying to face that problem, when it is there that the difficulties have arisen. The Committee may have dealt, as I gather it did at some length last week, with the definition of coasting. But if there are coasting schools, a number of them have arisen within a local authority and within the maintained system. So there are good, bad and coasting schools, all of them within the maintained sector. That is why I find it difficult simply to pick up a proposal that all you have to do is to spread the responsibility by having ways of taking on board an additional set of views, without a means of sharpening them.

10 Nov 2015 : Column GC452

To go back to my speech at Second Reading, there is a danger that we will simply bring in delaying tactics, which are the curse of the current system. I am still worried about the Bill having delays built into it in a way that I find unacceptable. That is why I am not—

Baroness Pinnock: Perhaps I may help out a bit. What I have proposed in the amendment has nothing to do with delaying anything. What it seeks to do is to find a way for local people to have a local voice about the schools that serve their community, be they maintained schools, schools in a multi-academy trust or single trust academies. All the amendment is about is creating an opportunity for an oversight of what goes on in a local community. It is not about decision-making, as the noble Lord, Lord Sutherland, may have thought. If we follow the parallel of the local authority health scrutiny committees, it is not only about membership by local elected councillors. Those committees have a membership that is drawn widely from both those who are elected to serve their communities and those who have an interest or past professional experience in the health sector. Those people are drawn together to look at the health services in their area and come to some conclusions about them, as well as enabling local people to come forward with their concerns. So this is nothing to do with delaying or only having a committee. It is about enabling some sort of platform for local people to voice their concerns, or perhaps even their delight, at what is going on. I hope that that has clarified it a bit.

4 pm

Lord Sutherland of Houndwood: It does, and that is helpful, but it still leaves the question of accountability for finance and governance, which is very specialist, and accountability for educational practices, which is pretty specialist too but perhaps does not relate to some of the issues that we are concerned with.

Baroness Hughes of Stretford: Before the noble Lord’s previous intervention, he seemed to me to be saying, and perhaps he could clarify whether this is his view, that all the schools that are bad or coasting are in the maintained sector, that the solution to dealing with that is to take them away from local authority control and relationships completely and that therefore, by implication, all the academies that have gone through the process of becoming academies are excellent. We know that that is not true. Is that what he is saying—that all the bad and coasting schools are only in the maintained sector?

Lord Sutherland of Houndwood: The noble Baroness will be pleased to know that that is not what I am saying. I have been an advocate of full inspection for academies ever since the last Bill was introduced, and I still take that position. That is the way in which academies should be judged; have no doubt about that. I do not think it likely that we will deal with that in this Bill but the noble Baroness asked me what my position was, and that is it.

What I am saying is that the Bill deals with coasting schools in the maintained sector and, if that is so, there is a bit of a problem if we are going to deal with the issue by simply recreating that. I simply record my

10 Nov 2015 : Column GC453

reservations. The noble Lord, Lord Hunt, was right to say that as it stands the clause may not achieve all that it sets out to, and if it comes back again I would be very interested to have a look at it. Still, I have these reservations and wanted to put them on record.

Baroness Evans of Bowes Park (Con): My Lords, this new clause would allow a local authority to establish a committee to review and scrutinise the provision of education in coasting schools, where such schools make up more than 10% of schools in the local area.

First, I shall touch on the points made by the noble Lord, Lord Hunt, and the noble Baroness, Lady Pinnock, about the accountability of academies. Our view is in fact that the accountability structure for academies is stronger because it reflects their status as both charitable companies and public bodies. This means that when it comes to matters of good governance and financial management, which, as the noble Lord, Lord Sutherland, noted, are very important, they not only have statutory responsibilities under company law but explicit accountabilities to Parliament. Because of this dual layer of accountabilities, academies have a stronger financial framework and are held up to greater scrutiny than most other types of schools.

Baroness Pinnock: I wonder whether we are at risk of thinking that accountability for children’s education—their one chance to get a good education—is all about balance sheets, audits and professionals coming to some conclusion having looked at attainment levels. At their heart, parents are concerned about whether their children are happy in school, whether bullying is dealt with and whether they get opportunities outside school for extensive education—creative, artistic or sporting. Those are the sorts of things that they take into account as well as their child’s academic progress. That is the accountability that I am talking about, not some dry, dusty PwC audit report that parents may not be able to understand. They do understand what happens to their children’s experience in schools. Where can they ask the questions?

Baroness Evans of Bowes Park: I mentioned that because the noble Baroness specifically talked about academies suffering financial failures, so I was addressing that point. I will come on in due course to talk about some of the other issues that she has raised.

We believe that the amendment is not necessary as the Bill gives regional schools commissioners, working on behalf of the Secretary of State, the powers to work with, and intervene in, any school that is coasting. Both the noble Lord, Lord Hunt, and the noble Baroness, Lady Pinnock, mentioned health scrutiny committees as a potential way of looking at this issue. The structure that we believe will work best is that of regional schools commissioners, and I will go on to explain why. I am sure that we will come back to this matter time and again this afternoon but I will attempt to put down the first marker as to why we believe that the Bill has devolution at its heart.

First, the Bill is concerned with improving schools that have failed. Decisions will be taken by regional schools commissioners, who are immersed in their local context—a point highlighted by the noble Earl, Lord Listowel, from the conversations that he has had

10 Nov 2015 : Column GC454

and from what he has seen. They are also advised by outstanding local heads. So there is local accountability and I will come on to talk a little more about that in due course.

Secondly, one of the main measures in the Bill gives greater power and responsibility to education professionals. The thrust of the Government’s agenda is to devolve power down to the very local level, trusting head teachers to know what is best and to do all the things that we want to see in good schools, as mentioned by the noble Baroness, Lady Pinnock. I am sure that we will return to this in later amendments.

As I said, the Bill provides RSCs with additional intervention powers for maintained schools so that RSCs can directly tackle schools that have been allowed to fail, or indeed coast, under the local authority’s watch. This means that all coasting schools will come under the scrutiny of regional schools commissioners. The RSC will work with each coasting school in their area to identify whether the school has the capacity to improve sufficiently by itself, which is one option, or whether additional support, including potential intervention, is needed. Such additional support could come from a national leader of education. Alternatively, the RSC may consider that the school should become a sponsored academy, or, as the noble Lord, Lord Sutherland, mentioned, there might be a partnership between the existing school and other local maintained schools or local academies.

The work of RSCs will go beyond what is suggested in the amendment. RSCs will not wait until 10 % of schools in an area have been notified that they are coasting before reviewing the education provision in those schools. Their work in relation to coasting schools needs to be continuous and thorough, with the aim of intervening swiftly where necessary. RSCs are strategically placed around the country to make decisions about coasting schools while, as I said, being immersed in the local context.

The noble Lord, Lord Hunt, asked about the role of local authorities. They will work very closely with RSCs, and I will come on to that. However, in terms of provision, local authorities can run competitions to set up new schools in areas where there is such a need. So there is still a role for local authorities, and many around the country have been active, although perhaps not enough due to the places issue that we are facing.

As I said, we expect RSCs to work closely with local authorities, and we have already seen evidence of effective partnerships. For instance, in Suffolk, the regional schools commissioner, Dr Tim Coulson, meets the local authority every month to discuss schools of concern. The RSC has strongly encouraged the authority to use its existing statutory intervention powers, and over the last 12 months Suffolk has issued 22 warning notices to poorly performing schools. The RSC has brought into Suffolk a number of new academy sponsors with proven track records of success. Overall, 17 underperforming Suffolk schools have become sponsored academies since September 2014 and a further five are in the process of converting. Also, this month the RSC is meeting the leader of the council to discuss establishing a school improvement board with the aim that every school inspected by Ofsted over the next two years will improve by at least one grade.

10 Nov 2015 : Column GC455

As to accountability and parents, the Schools Causing Concern guidance which is currently out for consultation makes it clear that local authorities should already alert the relevant RSC when they have concerns about standards, leadership or governance in an academy or free school. Parents can, and already do, write to RSCs when they have concerns. As I have said, RSCs are very clear about the need for community and parental engagement.

Baroness Massey of Darwen: I am sorry to intervene but I am getting rather confused. Did the Minister say that parents can write to the RSC?

Baroness Evans of Bowes Park: Yes.

Baroness Massey of Darwen: Why is it not the other way round? Why does the RSC not convene a meeting of parents? I am quite concerned about the letter from the Minister to the noble Lord, Lord Lang, which says that this,

“shows our absolute determination to create a school led system and to devolve decision making to experts on the frontline as far as possible”.

Who are the experts on children on the front line—are they not parents?

Baroness Evans of Bowes Park: Indeed, and also teachers. RSCs, for instance, go to meetings in schools to talk with parents about what is happening. At the last sitting, due to concerns about clarifying how the interaction between parents and RSCs will happen, we also committed to considering whether we can be more explicit in the guidance about what that interaction will look like; so we will come back with more to say on that.

As the Committee can see from the examples I gave, RSCs are already scrutinising the schools in their area that they have concerns about with a view to intervening swiftly where necessary. In addition to the new powers for RSCs as set out in the Bill, I hope that I have been able to reassure noble Lords that we will be actively monitoring and reviewing all coasting schools and intervening when appropriate. I therefore urge the noble Baroness to withdraw the amendment.

Baroness Massey of Darwen: How many of the schools identified for intervention are academies?

Baroness Evans of Bowes Park: We gave figures at the last sitting. I do not have them to hand now but can get that information to the noble Baroness.

Baroness Massey of Darwen: Is the noble Baroness aware that 25% of all failing schools are academies?

Baroness Evans of Bowes Park: That is because a number of state-maintained schools have now converted to become academies; so they have shifted into being academies.

Lord Hunt of Kings Heath: Is the noble Baroness seriously saying that the only failing academies are ones that have just transferred?

The Parliamentary Under-Secretary of State, Department for Education (Lord Nash) (Con): No, we are not saying that.

10 Nov 2015 : Column GC456

Lord Hunt of Kings Heath: Quite.

Lord Nash: The answer to the noble Lord’s question is that we are not saying that, obviously; but as we made clear ad nauseam the last time we were here, there have been 1,500 failing maintained schools converted to academies, many of them very recently, all of which have been performing badly, many of them for years under local authority-maintained status.

Baroness Morris of Yardley (Lab): But it is also agreed that one in seven of the schools that converted from the maintained sector as excellent or outstanding stand-alone academies went on to require improvement or serious measures.

Lord Nash: We can bat around statistics on this for ever but, in fact, the converted academies are doing considerably better than local authority-maintained schools.

Baroness Morris of Yardley: If we are arguing about statistics, will the Minister accept that the one I gave was given in a reply from his department?

Lord Nash: The noble Baroness is talking about Ofsted grades; I am talking about exam results.

The Earl of Listowel: Before the Minister responds, perhaps I may say how pleased I am to be reminded of the weight that the Government are placing on professional judgment. I was pleased to read in the Grand Committee proceedings and in the media that they are introducing this new college for school teachers, which will recruit, train and retain the very best teachers to send out to the schools that need them most. That sort of initiative is very welcome. I also welcome the Government’s drive to build trust in head teachers, recognise their expertise and give them as much authority as possible. My concern is that, because of the way in which the Government have set this up, they are putting huge pressures on head teachers to perform in a certain kind of way—which is to have good academic performance so that one will do well as a head teacher if one jumps through certain hoops, which is what head teachers will try to do. That distorts what they might do.

For instance, yesterday the noble Baroness, Lady Massey of Darwen, organised a meeting with children from pupil referral units and hospital schools. We learned that a key issue for those young people is reintegration into mainstream education after their healthcare is completed, or whatever else it might be. A disincentive on the part of head teachers to accept them is that they are not likely to do so well academically. A young boy or girl coming out of hospital who has been away from school for quite some time is not likely to perform as well academically and there might be some hesitation on the part of the head teacher to take them back. I warn the Minister that I may well table an amendment at the next stage of the Bill to help us deal with the particular issue of children who have been out of school for some time and suggest that their data should be excluded from the performance statistics. A head teacher should not have to worry that she will be seen as failing because of a child who

10 Nov 2015 : Column GC457

has been out of school and is not achieving academically as well as the others. As I say, I may well bring forward an amendment on that.

4.15 pm

I welcome what the Government are doing in terms of respecting and listening to head teachers, but I am worried that there might be a too centralised and too heavy-handed emphasis on academic attainment. On that, I should perhaps clarify something I said earlier, which is the need to allow young people in care to fail and fail and fail again. That seems quite controversial, but what I mean to say—I am thinking of all children, not just children in care but adolescents as well—is that they should be allowed to fail and fail again and they should not feel too badly about it, rather they should be given another opportunity to succeed. I suppose the worry is that one will put too much pressure on them to achieve at a certain age and at a certain time in their development, which may turn them off education. I think a distinction between us and other nations is that we do not easily allow children to retake a year if they are not doing well. But I suspect that we probably should allow children to do as well as they can.

Again, this comes down to the professionalism of our teachers and devolving power down to them. Our teachers should know how hard to push a child in order to help them excel, but know also when to step back and realise when a child is struggling. They should let them do as well as they can at the time and then give them another opportunity the following year. As I say, some young people in care can excel early on but many may do so later. We just have to be sure that we give them chance after chance after chance to do well when they are ready to do so.

I am worried about the further central push on academic attainment which this Bill will put on head teachers. I am grateful to the Minister for his response.

Baroness Perry of Southwark (Con): The noble Earl’s concern for vulnerable children is well known and entirely to his credit, but I wonder if he would acknowledge that the alternative to failing and failing and failing again is to succeed academically. The one thing which has bedevilled educational attainment over many decades has been low expectations: saying, “What can you expect? It is because of their miserable backgrounds and troubled families?”, and all the rest of it. The answer is that we must have expectations. These young people deserve to achieve. I agree entirely with the noble Earl that pushing them too hard, too soon can be counterproductive, but the alternative of just sitting back and saying, “Well, they have such awful backgrounds, they are so vulnerable and they find life so difficult that we must not push them at all”, is something I could not go along with. I really believe that raising expectations is the whole thrust to success that this Government are so determined to achieve—and that is raising expectations for all children.

I know that noble Lords opposite have pointed out that some academies are failing. No one disputes that—of course there will be failures in any system, and they will made to stop failing and start succeeding. But if we are to give every child genuinely the best

10 Nov 2015 : Column GC458

education, we have to look at what some academies have done brilliantly with the most vulnerable children in the most difficult circumstances and then pull the others up so that instead of 7%, 8% or 11% getting decent GCSEs, 90% do so. Listen to my noble friend Lord Harris of Peckham and look at what he has done. Some of us have visited several of his schools and have seen what can be achieved.

Baroness Sharp of Guildford (LD): I point out to the noble Baroness that there are also local authority-controlled schools where one has seen a very similar turnaround. High expectations are not the preserve of academies alone. Good teachers always have high expectations.

Baroness Perry of Southwark: Absolutely. I would be the first person to say that there are some wonderful maintained schools and some very good local authorities. Nevertheless, it is true, and the noble Lord, Lord Sutherland, made this point, that local authorities have had decades to get this right and have allowed far too many schools to fall below the standard and taken no action to improve that. It was right that central government should move in to try to do something about it. I am sure that noble Lords opposite would have alternative ways to do that; the Labour Government did a great deal when in power as a central authority to help to raise standards, and they are to be highly praised for the legacy that they left in London and so on. There is a good history of central government moving in when local government is failing, and there is no question that plenty of schools that have been taken out of local authority control have succeeded. That does not mean that there are not lots of excellent local authority-maintained schools.

Baroness Massey of Darwen: My Lords, I wonder if I may add something to what the noble Baroness has said. I am glad that she has raised this issue. I like to think that the raising of achievement in schools when I was a parent in London was due to a great deal of consultation with parents, councillors, industry and so on. That is not the point that I wanted to make.

I want to refer back to what the noble Earl, Lord Listowel, said about the meeting that I chaired last night. I happen to have in front of me a PricewaterhouseCoopers report on achieving schools about the Achievement for All programme, but I will not go into that now.

I had a very interesting email this morning about coasting schools from one of the people at that meeting who is an academic studying pupil referral units, and I think that the noble Baroness may be interested in this. To summarise, she says that schools must be able to progress learning, not just count the number of GCSEs that they have. She said:

“If coasting schools are to be defined by academic progress why would this not include 100% of pupils progressing 100% of the time? Measurement should therefore be based on progressing learning for all children and young people regardless of background, challenge or need; outcomes should be measured by engagement in learning and impact on all children and young people’s social and academic progress”.

That is what the PricewaterhouseCoopers report emphasises.

10 Nov 2015 : Column GC459

The Earl of Listowel: If I may respond to the noble Baroness, Lady Perry, one listens to the noble Lord, Lord Harris of Peckham, talk about his schools and the transformation that they have wrought, and indeed one listens to the Minister talk about our local school here, and it is clearly a huge and most important change that is very much to be welcomed.

I suppose that I need to be careful not to strain at gnats when we are talking about bigger issues. I recognise that expectations about the educational attainment of young people in care have been too low in the past. We have said that they have had too difficult a time, it is tragic and we cannot push them. However, we need to be careful not to move from one extreme to another. Ultimately, the best thing is what the Government are trying to do: to recruit and retain the best professionals closest to the child who are in the position to make a judgment on just how hard to push that child forward and at the same time how gentle to be with that child—a nuanced, sensitive approach. The children who visited us yesterday—what to say? I agree with these measures and I am sorry that I have not expressed myself more clearly. I certainly agree that we should not let children down by having too low an expectation.

Baroness Pinnock: I thank noble Lords for the interesting debate that we have had around accountability. I particularly thank the noble Lord, Lord Hunt, for the general support that he has given for the idea of trying to establish a greater degree of accountability within the system. I also thank him for reminding us that this is in fact a very nationalising, centralising approach to education, notwithstanding the remarks made by the Minister. In essence, all academies have to report to the Secretary of State, with one layer in between, which is the regional schools commissioner who is appointed by the Secretary of State. If that is not a centralising, nationalising approach to schools, I do not know what is. That is one of my problems with the creation of academies without any local accountability built in to the system.

Moving on to the regional schools commissioners, they are not regional in the accepted, geographic sense of the word. In my part of West Yorkshire, our regional schools commissioner is in—dare I say the word?—Lancashire. I have to tell you that it does not go down particularly well to be described as being part of the Lancashire—and a little bit of West Yorkshire—schools commissioner. I jest, in a sense, to make the point: because of the way that the regional schools commissioners are set up, they do not understand and know the regions. Most of the north-west is made up of very different communities from the old textile and engineering communities that I serve in West Yorkshire. For one man—it is a man—to try to understand and have that soft information, rather than always relying on the hard data, to make decisions about accountability is much to be regretted.

Finally, the noble Lord, Lord Sutherland, raised the shibboleth that is democratic accountability. We need to understand both those words. We are in danger, I think, of creating an education service in this country that has no, or very little, democratic input. For a service that is for every child, regardless of background, community or place, to have no democratically elected

10 Nov 2015 : Column GC460

person to whom they can call on for help and guidance, and for those elected people to have no means by which to address those concerns, is a route down which we should not be going. Where else will those people turn? There is no point saying, as the Minister did, that parents are already writing to the reginal schools commissioners. No doubt they are—but they will not be some of the parents in the communities that I serve, for whom English is a second language and whose own literacy skills are not very good. They will not have those skills, so who does it fall on? Who in this chain will stand up for parents and their children who are not perhaps getting a fair deal locally? That is what I want to know and that is why this amendment was tabled. I have yet to hear the answers.

Those are my concerns about the words “democratic” and “accountability”. It is about having a local voice; someone who knows and who can be trusted and relied on to stand up for local people. I have yet to hear that. That is a huge shame and one that I think we will live to regret unless we create some means of achieving this outcome. Having made those remarks, I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

4.30 pm

Clause 7: Duty to make Academy orders

Amendment 15A

Moved by Baroness Sharp of Guildford

15A: Clause 7, page 6, line 8, at end insert—

“( ) In determining whether to make an Academy order in respect of a maintained school in England, the Secretary of State must consider the availability of a suitable sponsor with a value added measure above the national average.

( ) If no suitable sponsor is available, the Secretary of State must appoint as a sponsor a willing council-maintained school or local authority with a value added measure above the national average.”

Baroness Sharp of Guildford: My Lords, this amendment takes us to Clause 7, which is about failing schools, not coasting schools. It makes academisation mandatory for all failing schools: those which on inspection are judged inadequate or in need of very significant improvements. We put forward this amendment at the behest of the Local Government Association which is worried about its responsibilities for finding sponsors for such schools. I shall quote the association’s briefing:

“We are concerned about the capacity of the pool of current and potential academy sponsors to take on large numbers of additional schools. Councils are also reporting difficulty in finding sponsors for new schools or schools found inadequate by Ofsted. The DfE itself has already halted the expansion of some of the largest academy chains in response to concerns that rapid expansion has affected standards and Ofsted has issued critical reports on the performance of some chains. Recent DfE figures show that only 15% of the largest chains perform above the national average on an ‘added value’ measure, compared to 44 per cent of councils”.

This picks up work that has been done by the Sutton Trust in the two reports it issued this year and last year on academy chains. Summing up its findings in the 2015 report, the trust said:

“Overall, in comparison with the national figures for all secondary schools and academies … the sponsored academies in this analysis have lower inspection grades and are twice as likely to be below the floor standard. In 2014, 44% of the academies in

10 Nov 2015 : Column GC461

the analysis group were below the government’s new ‘coasting level’ and 26 of the 34 chains that we have analysed had one or more schools in this group”.

It also noted that there were significant variations between chains and within chains with,

“a larger group of low-performing chains … achieving results that are not improving and may be harming the prospects of their disadvantaged pupils”.

It goes on:

“The contrast between the best and worst chains has increased in 2014. Some chains with high attainment for disadvantaged pupils have improved faster than the average for schools with similar 2012 attainment. In contrast, the lowest performing chains did significantly less well over the period 2012-14 than schools with similarly low 2012 attainment”

It is not surprising that the Sutton Trust’s main recommendation was that,

“the DfE and regional schools commissioners … should specify and operate clear, rigorous criteria for all sponsors”,

and that school-based federations and trusts should be expanded; that is, linking up well performing schools, sometimes perhaps in the local authority maintained sectors, with schools that are failing rather than necessarily making them into academies.

This is more or less precisely what this amendment is proposing. Subsection (1) suggests:

“In determining whether to make an Academy order in respect of a maintained school in England, the Secretary of State must consider the availability of a suitable sponsor with a value added measure above the national average”.

For example, the Harris Academy chain, which is very well regarded, would be regarded as a suitable sponsor. However, only 15%—quite a small group—of academy chains are in that category, although they are the larger academy chains.

The amendment goes on to provide that:

“If no suitable sponsor is available, the Secretary of State must appoint as a sponsor a willing council-maintained school or local authority with a value added measure above the national average”.

So the amendment picks up on the two proposals from the Sutton Trust report by saying on the one hand, “Look hard when you are choosing a sponsor—don’t just choose any old sponsor. Make sure that it is one with a very good record in coping with this sort of school”, while on the other hand it refers to where there is no local sponsor available.

It is certainly true that many academy chains concentrate on particular areas and that there are not always chains that are available and have schools locally. When you are part of an academy chain, it is quite important to be able to link up with other schools in the chain and be able to compare best practice. The school of which I am a governor is part of an academy chain, but no other local schools are part of it, and that poses problems. It means that we have to travel about 50 miles to go to a meeting—usually around the M25 at 6 o’clock in the evening, which is not the best thing to do—so as I say, there are problems with not having a local sponsor. Sometimes linking up with a strong local authority-maintained school is preferable, even if it is not itself an academy. Many local secondary schools are now academies and if you have a good, strong local academy, then putting the school under that umbrella is preferable to trying to link it up with a far-distant chain. I beg to move.

10 Nov 2015 : Column GC462

Lord Watson of Invergowrie (Lab): My Lords, I support Amendment 15A and I agree with the sentiments espoused by the noble Baroness, Lady Sharp. It is surely sensible that a school should not be the subject of an academy order until or unless a sponsor has been identified as appropriate for that school as an academy. The alternative is for the school to be placed in a form of limbo, which as I see it cannot possibly be of any benefit to the children, parents or teachers or anyone else associated with the school. Can the Minister say, concerning the Bill, how many schools have already been designated as ready to be academised but have not yet been moved to that sector because for whatever reason it has been impossible to find an appropriate sponsor?

It is not clear what the DfE or perhaps the regional schools commissioner would do in such situations. Do they seek a local maintained school to take the failing school under its wing? Does the Minister anticipate that the suggestion made in the amendment relating to a local authority should apply in those situations? It would seem that there are good reasons why it should. I imagine that he will reject the amendment, however, so can he tell us what would happen if in these circumstances a sponsor cannot be found? I will have more to say on the question of sponsors in the sixth group, but for the moment I look forward to the Minister’s response.

Baroness Evans of Bowes Park: My Lords, I would like to respond to Amendment 15A, tabled by the noble Lord, Lord Storey, and the noble Baronesses, Lady Pinnock and Lady Sharp. This amendment concerns whether and how a regional schools commissioner would identify the most suitable sponsor for a maintained school that had failed.

Clause 7 makes it clear, as did our manifesto, that for any school judged inadequate by Ofsted an academy order must be made. The RSC will take responsibility for this, identifying the most suitable sponsor and brokering the new relationship between that sponsor and the school. RSCs are already responsible for approval of sponsors, subjecting prospective sponsors and their trusts to thorough scrutiny before they can be approved to take on sponsored academies. I assure the noble Baroness, Lady Sharp, that they consider all new sponsor applications in their region against robust and uniform criteria which are available, and they approve those which can demonstrate that they have the capacity and expertise to turn underperforming schools around. Through this rigorous assessment process, supported by the advice and challenge of their head teacher boards, RSCs ensure that prospective sponsors have a strong track record in educational improvement and financial management and that their proposed trust has high-quality leadership and appropriate governance.

RSCs are also responsible for monitoring and holding academy trusts and sponsors to account for their educational performance. They do this robustly through Ofsted inspection reports on the schools within a trust and published performance data. Trusts are also held to account for their financial management, governance and compliance by the Education Funding Agency. Information about MATs in these areas is transparent, with academy trust accounts audited and made publicly available. Where it is clear that a trust is not improving a school, the RSC will not hesitate to take action and re-broker it to a stronger trust.

10 Nov 2015 : Column GC463

As I have described, RSCs take a wealth of data and intelligence into account when identifying which sponsor should take responsibility for turning around a failed school. The tabled amendment requiring RSCs to take account of value-added performance and progress measures when identifying a sponsor for a failing maintained school is unnecessary. RSCs already look at a sponsoring school’s performance and, of course, in the future our new Progress 8 measure, by which secondary schools will be held to account, is a value-added methodology. In fact, the department has led the way in using added value to assess performance, publishing proposals on using such measures for chains and local authorities back in March.

The amendment also proposes that where there is not a sponsor of a high enough quality available, a failing school should be sponsored by a local authority maintained school or, indeed, directly by a local authority. This amendment is unnecessary because RSCs will ensure that a failing school is matched with an academy sponsor. To reassure the noble Lord, Lord Watson, RSCs have a wealth of good sponsors available already. There are 778 approved sponsors, all of have been subjected to the rigor described and the criteria I have outlined. RSCs are continually identifying and supporting additional outstanding schools in their area to become new sponsors. That is one of the benefits that RSCs have already brought to the programme.

Lord Watson of Invergowrie: I thank the Minister for the figures she has just given us but is she saying that there have not been cases where a school has been designated to be an academy but has not been able to continue because there is no sponsor? She mentioned some 700 sponsors. Are these organisations just waiting in the wings for a letter saying, “Will you take over this school?” or is this a plan for if and when this Bill is implemented? It is not clear what the figure of 700 involves.

Baroness Evans of Bowes Park: There are 778 approved sponsors and about 20% are waiting to be matched with schools. The noble Lord asked which schools may need sponsoring. The precise number will vary from year to year and will depend on Ofsted inspections and test and examination results. We anticipate that as many as 1,000 failing maintained schools could potentially become sponsored academies under the new measures.

Baroness Morris of Yardley (Lab): I think the issue about how long schools wait before they find a match with a sponsor is very important. I had heard anecdotally—so this is the Minister’s opportunity to put it on the record—that quite a number of schools are now known as orphan schools because they have been taken away from one sponsor and have not yet been given another one. Does the department have a target time in which an alternative or a first sponsor should be found? What is the department’s record on achieving that target?

Baroness Evans of Bowes Park: We look for a sponsoring match to happen as quickly as possible but one of the issues that this Bill is attempting to address is the delays caused by the very process that schools have to undergo at the moment.

10 Nov 2015 : Column GC464

Baroness Morris of Yardley: My question is not about that. Perhaps the Minister will write if she is not in a position to answer it now. It is not about the delay at the school end, it is about the delay at the department’s end in finding a suitable sponsor. Are there some schools—colloquially known as orphan schools—waiting for either an initial sponsor or a second sponsor? Also, does her department have a target time in which a sponsor must be found and what is the department’s record in reaching that target?

4.45 pm

Baroness Evans of Bowes Park: I think it would be best if I wrote to the noble Baroness as I do not have the figures directly to hand.

The academy trust structure also brings greater autonomy with a strong accountability framework. International evidence has shown this drives up standards. Academies operate under a robust accountability framework under which we are able to hold the trust directly to account for their school improvement and we have clear routes to intervene should concerns arise. We would not have the same robust accountability if a maintained school or a local authority took over responsibility for a failing school.

It is also not just about the freedoms and stronger accountability, though; it is also about some of the substantial advantages of operating in a multi-academy trust, which the noble Baroness, Lady Sharp, identified. It is acknowledged that the best way to improve schools is through local school-to-school support, and the best, most rigorous, efficient and accountable way to do that is through such a multi-academy trust. People who run multi-academy trusts talk about the advantages of the freedoms, the sense of being in control of one’s own destiny, the career opportunities as people are employed across a group of schools, the ability to retain good staff and, crucially, the ability to share best practice. They talk about leadership development, the enhanced CPD and, on the operational side, the economies of scale and purchasing power of being in a MAT. They talk about the ability to have common school improvement, behaviour management systems, a common curriculum, common teaching pedagogy and systems and the limitless benefits of pupils moving from primary to secondary when a MAT has both types of school in its family.

Baroness Pinnock: What I am concerned about in what I am hearing is that the Minister is suggesting that that does not occur in the maintained sector. There is sharing. The schools forum, which all local authorities have to have, brings head teachers together to discuss the very things that she has just described: a common approach to training, personal development for teachers, the sharing of best practice and being able to determine the “destiny” of schools, as she puts it—I hope that in fact we are talking about the destiny of children within them; it always worries me when people talk about the schools rather than the children. None of the factors that she listed there is relevant only to academies. They apply also to maintained schools, and we ought to recognise that.

Baroness Evans of Bowes Park: I did not say that they did not, but we are talking here about multi-academy trusts and why for failing schools it is a good option

10 Nov 2015 : Column GC465

for them to be involved. Local school forums do indeed have a role but I think that many head teachers would talk about the positive benefits that they have found in setting up a multi-academy trust. That is all I am saying. I am not saying that local maintained groups of schools are not able to form good partnerships themselves.

Baroness Pinnock: Would the Minister therefore support outstanding local maintained schools becoming a sponsor for these schools? As she has just said that they can also behave in the same way, there does not seem to be any argument against a local maintained school becoming a sponsor for a failing school.

Baroness Evans of Bowes Park: They could certainly become an academy and do that, but they would have to have the same legal structure. I shall come on to that in a second.

Given that 65% of our secondary schools are now academies, it is increasingly sponsors for primary schools that we are seeking to source and develop. In small primary schools the MAT structure is even more critical, again making it necessary for sponsoring schools to be academies themselves that are able to form such a MAT rather than leaving small sponsored primary schools standing alone. We would certainly hope that any maintained school with the expertise, capacity and enthusiasm to support a struggling school would consider converting to academy status in order to do this, in the process unlocking all the benefits and opportunities that I have described.

We also anticipate that as more schools become academies and local authorities have fewer maintained schools left, as many already do, we will see members of local authority teams who are skilled at school improvement spinning out to set up their own MATs, and this development would be most welcome.

In conclusion, I shall quote Maura Regan, CEO of Carmel Education Trust, who attended our sponsor event last week. She said:

“We have to accept that what has happened historically in many local authorities has not worked. We are about revolution—we need to take a break from the past and embrace a new model whereby school leaders are increasingly in charge of their own destinies”.

In light of that, as well as my explanations, I urge the noble Baroness to withdraw her amendment.

The Earl of Listowel: I was interested in what the Minister said about the sponsorship process. I would be interested to learn a bit more about it—how sponsors are selected; how they are inducted; and how they are qualified. I guess there is a certain sensitivity in that one wants people to sponsor, so one does not want to place too much of a burden upon them; but on the other hand, it is important that if they sponsor, it is a success and there is not a clash of cultures but complementary working together. The Minister may like to write to me, or perhaps she will say a few words now about that process and particularly about induction so that we ensure that sponsors perhaps spend time in a school sitting at the back of the class so they have a sense of what it is like at the coalface—the chalkface I should say.

Baroness Evans of Bowes Park: I am very happy to write to the noble Earl on that point.

10 Nov 2015 : Column GC466

Baroness Sharp of Guildford: I thank noble Lords who have participated in this debate. Will the Minister clarify one point? I do not have a copy of the Academies Act with me and I have therefore been unable to check it, but my memory of it is that, in effect, where a school fails, it is initially up to the local authority to effect, so to speak, the process of academisation. The Bill changes it so that:

“The Secretary of State must make an Academy order in respect of a maintained school in England that is eligible for intervention by virtue of section 61 or 62”.

That means that the Secretary of State is now the person to take action. In effect, the Minister said that local authorities do not have to worry at all about this because the regional schools commissioners will take responsibility for it. They will have to worry about whether there is a good academy chain. I said that it is important to take local issues into account. There are a lot of academy chains that are not performing very well at the moment as well as those that are. It is not preferable to bring in a poor-performing academy chain rather than use a strong local school. The preferable solution is to link up at a local level so that the school has locally available mentors that it can easily talk to. I rather object, in some senses, to the way that the Minister said, “Don’t worry any more because the regional schools commissioners are going to take this problem and they’ll sort it out because all our academy chains are so super”. They are not. The Government recognise that. This is an important amendment. We want a more sympathetic approach to it. As we are in Grand Committee, we cannot vote here, so I shall withdraw the amendment.

Lord Nash: The noble Baroness is right that the key to school improvement is local school-to-school support. I could not agree more. The academy model is now focused on that, so sponsors will either be a local sponsor in the local MAT formed out of a local outstanding school, and we have created several hundred in the past couple of years, or a part of a national MAT with a local hub. That is essential. I agree entirely with the noble Baroness.

Baroness Sharp of Guildford: I beg leave to withdraw the amendment.

Amendment 15A withdrawn.

Amendment 16

Moved by Lord Addington

16: Clause 7, page 6, line 10, at end insert—

“(4) After subsection (7) insert—

“(8) If, by the relevant accountability measures laid down by government regulation an Academy is “failing” or “coasting”, it is by virtue of this section eligible for intervention if the governing body of the Academy—

(a) have been informed of their Academy’s assessment over a three year period by a Regional Schools Commissioner;

(b) have been notified that the Secretary of State considers the Academy to be coasting; and

(c) have not subsequently been notified that the Secretary of State no longer considers the Academy to be coasting.””

10 Nov 2015 : Column GC467

Lord Addington (LD): My Lords, this amendment is an attempt to correct something that I see as rather an error in the Bill. We have this new condition of “coasting”, which is bad—I think that that is probably the great driver here—and we have a solution to coasting schools, which is that they become academies. We have heard a great deal in the Committee—and it is obvious to anyone who thinks about it for three seconds—that occasionally, at certain points in the future—let us not argue about frequency—academies will start to coast. It has already been agreed that they can fail. My amendment is an attempt to try to tie academies into the existing structure that could deal with an academy that has gone wrong.

I feel that we will have a great deal more fun arguing about exactly what the correct definition of “coasting” is. Indeed, the noble Lord, Lord Lucas, looked, shall we say, a bit like a dog that had found a nice juicy scent when we talked about the academic definition before. That is something which any Minister should be very wary of. The fact of the matter is that we will have a definition, and no matter how you tweak it, occasionally an academy is going to fall within that definition. If coasting is wrong for one school it must, I hope, be wrong for any school. While, as always, the amendment is probing in nature, it is an attempt to bring such a school in.

Amendment 17 presents a slightly different way of basically removing the fur from this moggie. It would insert a new clause. One thing I like about it is that it goes back to nurse; it goes to Ofsted, a body that can take a look around, which knows the system and which can make a judgment. We should think about that because we know how Ofsted works and how its judgments go, and it is in place. Also, using Ofsted in conjunction with regional schools commissioners is probably quite a sensible idea. We have a body whose judgment we trust and which we have used. We should try to put something into the Bill for academies which are making mistakes and doing something wrong—there could be 1,001 problems. I think that Uplands Junior School in Leicester has lost half its teachers today and is to become an academy. Who knows what is going on there? The Minister is looking at me strangely, but it was reported only today so I understand why he may have missed it. It was brought to my attention very briefly.

Lord Nash: I am happy to talk about it now.

Lord Addington: Perhaps we can talk about Uplands school at length on Report.

If we go down this path, we will have situations where things go wrong. We need to have an intervention process for an academy that gets it wrong. If it is the entire chain because there is something that is happening through it, we will probably need to intervene on the whole thing. Amendment 16 is just a way of putting in the Bill a provision that says, “Let us try to use what is already in place and so get some sort of solution to this”. It is basically about starting again. I hope that there is no fundamental objection to the amendment and that we will hear how the thinking is developing on something which is an inevitability, no matter how infrequent it is. I beg to move.

10 Nov 2015 : Column GC468

Lord Watson of Invergowrie: My Lords, I rise to speak to Amendments 17, 21 and 26 to 29 in this group. Amendments 21 and 26 to 29 are identical, straightforward and, I believe, not in need of explanation because they are consequential on Amendment 17. Clause 7(2) inserts a new subsection in the 2010 Act which states that:

“The Secretary of State must make an Academy order”.

The amendments seek to reinstate Section 4(1) in the 2010 Act which states that:

“The Secretary of State may make an Academy order”,

for a school that is “eligible for intervention”. These amendments address various parts of the Bill where reference is made to the “must convert” duty. They are the removal of the duty to consult in Clause 8, the “Duty to facilitate conversion” in Clause 10, the:

“Power to give directions to do with conversion”,

in Clause 11 and the:

“Power to revoke Academy orders”,

in Clause 12.

The point about these amendments is that, rather than there being a presumption that the solution for one school is a solution for all schools, they propose that each school should be considered on its merits. Ministers say that they want to help all schools improve. If they are sincere in that aim, we believe that options other than forced academy status should be available to the Secretary of State.

5 pm

Schools which receive an Ofsted judgment of inadequate may require changes to their governance arrangements. The new clause proposed in Amendment 17 addresses the weaknesses in the Bill by removing the dangerous assumption that a single form of governance is suitable for such schools. It requires a local discussion about what is best for such a school and the area that it serves. The concept of forced academisation where a school is found to be inadequate must rate as one of the most clearly ideological uses of the law to control schools that we have seen for quite some time in this country.

Not content with the existing Academies Act 2010, which gives the Secretary of State the power to issue an academy order to a school rated inadequate by Ofsted, the Secretary of State clearly, and almost bizarrely, does not seem to trust herself or her successors because she wants to ensure that she does not waver an inch by instructing herself—surely a unique concept—to do so automatically. No ifs, no buts, no consideration of alternatives and no consultation with parents, governors or local authorities. The Secretary of State will always have her way because nothing else is permissible, should this measure be enacted.

For the Secretary of State to say that she is effectively beyond fallible—that she cannot be wrong, ever—is tawdry. It is a misanthropic attitude and a very strange one for a Government to adopt and promote. It is not as though the one-size-fits-all approach is effective. In fact, the Government’s failure on school improvement was unveiled last month, when new figures showed that there are thousands more children in inadequate academies than in local authority schools. I mentioned

10 Nov 2015 : Column GC469

that at Second Reading and again last week in Committee. I will not repeat the figures, but they are certainly not explained by what we have heard from both Ministers today: that they are really a reflection of schools having transferred from the maintained sector and not yet having got up to the level that they are expected or hoped to reach. That does not go far enough.

The most recent Ofsted figures reveal that there are 17,000 more children in inadequate academies and free schools, and these figures were released just weeks after the Prime Minister unequivocally stated that his ambition was for “every school an academy”. The Secretary of State has said that academies are a better kind of school than those maintained by local authorities. I am not sure what she meant by that, and it would be helpful if either of the Ministers could clarify that today. However, there is not much objectivity in evidence in that statement. Indeed, most people looking at this Bill would say that there is not much objectivity to be found in many places within its clauses.

The Government are in danger of taking standards backwards, focusing obsessively on school structures at the expense of what matters most in our classrooms, which of course is the quality of the teaching. We believe that there should be a relentless focus on standards in all schools, and nothing is more fundamental to raising standards and improving social mobility than having excellent teachers in our schools. Yet, while the Government continue to be fixated on whether or not a school is an academy, they downplay the serious challenges facing our education system, such as the chronic shortage of teachers up and down the country.

As we have said on many occasions, Labour is not opposed to schools becoming academies. In particular circumstances with appropriate sponsors, the academy model works and often works well, but it does not always work and other models have proved more effective in some cases. In Committee in another place, some of the alternative approaches to school improvement were discussed. The Catholic Education Service provided two particularly telling examples which I believe bear repetition. The first was in a primary school when the diocese came forward with an alternative to academisation involving the appointment of an executive head teacher, who implemented a school improvement plan. With support from staff and parents, the school’s Ofsted assessment rose from grade 4 to grade 2 within a year, and that school continues to improve.

Partnership is another means of bringing about school improvement. Again, an example was given in another place of a school which was inspected by Ofsted in 2012. It was given grade 4 for attainment, teaching and leadership, and grade 3 for behaviour and safety. Overall, it got grade 4 and was thus in special measures. The diocese then brokered a support programme, led by the head teacher of another school, and the expertise of a number of local schools were used to improve the failing school. After just 13 months it was reinspected under Section 5 and was graded 2 in all areas. That was a clear example of a federation of schools working successfully, rather than automatic academisation.

Yet both those examples would become illegal if this authoritarian legislation becomes law. I ask whichever Minister is answering on this group how they can justify

10 Nov 2015 : Column GC470

such a draconian measure, as I regard it, which ties the Secretary of State’s hands so that she has absolutely no flexibility on how schools with an inadequate Ofsted judgment are treated. Why limit the options? Surely only closed minds follow that path. It is fairly clear that the Secretary of State holds an ideological position which states that private sponsors are always better than public bodies and, in particular, better than any local authorities, regardless of the party in control. It seems that even a Tory-controlled council cannot be trusted with education by this Government. Labour takes the view that decisions on schools should be taken according to the circumstances of each case, based on the evidence, and that the Secretary of State should not be making that decision herself or have someone do so in her name.

That is why we have submitted Amendment 17, which would introduce a concept that appears to be anathema to the Minister: consultation. The Minister shares the Secretary of State’s view that there is no point in asking people what they think because they might not give the answer that he wants to hear. Worse, they may delay the change to academy status through exercising their democratic rights. That is certainly not a reason for denying people the right to have their say, so this amendment sets out a number of steps, including a role for the unelected and publicly unaccountable regional schools commissioners.

At this stage, I would like to address some remarks to the noble Lord, Lord Sutherland of Houndwood, a man who I have respected for many years and who has a formidable reputation both within Scotland and furth of Scotland. However, I have to disagree with him for mentioning in his earlier remarks his disdain for what I think he characterised as the shibboleths of democratic deficit and human rights. I hope that I do not misquote him. I fear that I am about to disappoint him in this regard because I shall refer on more than one occasion to these important matters today and, indeed, at other stages of the Bill, because I believe that they lie at the heart of the Bill. The noble Lord mentioned a well-known international financial consultancy and said that he would prefer that it was given a role. That is not what I am referring to. To me, the issues of transparency and consultation are key because there is very little of the former and absolutely none of the latter, and that is indefensible.

The Earl of Listowel: I am thinking of, for example, the need to build a children’s home or to produce more affordable housing in a community. Often in those circumstances, the local community is in practice very resistant to having that children’s home or affordable housing. In principle, one should consult local people about their local environment and act upon their wishes. In practice, it can sometimes be so difficult to build a children’s home in certain areas that they get built in the worst or least popular areas, where the local community is less likely to be vociferous, because that is where it is possible to do so. In the case that the Minister is arguing about it being so important that we do better for the education of our children and that the academy model—I know that we are debating this—has been shown to be quite effective in improving those outcomes much of the time, does he see that there should perhaps be some flexibility on how much weight one gives to local people in this choice?

10 Nov 2015 : Column GC471

Lord Watson of Invergowrie: That is an interesting comment by the noble Earl. Flexibility is what I am looking for in this amendment because this part of the Bill contains none. It is interesting that the noble Earl referred to housing. A word which he did not use but was, I think, suggesting is nimbyism, where people say, “It is admirable that there should be such a structure or facility, but just not right next to my house”. I am always dubious in such situations. If the Minister has not looked at it already, he should look at the Housing and Planning Bill, which was launched in another place a few weeks ago, which seeks to close down a lot of people’s ability to object to those sorts of developments as well. That is something that I will say more about on another amendment. There is a pattern with this Government closing down discussion and dissent and getting their own way regardless of what people think. I think that that is undemocratic, and it is important that we should speak out against it wherever we encounter it, in legislation or in any other setting.

In this regard, the Minister and the Secretary of State are just plain wrong. No one is infallible. The Secretary of State needs to accept that and, for goodness’ sake, give herself some flexibility. I hope that the Minister will now realise that in 2015 you cannot just gag people who care passionately about the education of their children and tell them, as you might say to one of their children, to sit down and shut up as if they were of no importance at all. That is what is effectively being said to parents in the Bill. That cannot be right, and I hope that the Minister will take on board the comments that I have made in this amendment.

Baroness Massey of Darwen: My Lords, I support Amendment 17 onwards. I was sorry to miss such a lot of last Thursday’s consideration of the Bill. I had to leave, as those present on Thursday will know, in order to get home before the bonfire celebrations in Lewes. That I did, just, dodging flaming torches, effigies and the burning of David Cameron, Sepp Blatter and Jeremy Clarkson among others. However, I have caught up by reading Hansard. As an antidote to fireworks and bonfires, I dipped into some of the former education Bills, such as the Education and Inspections Act and the Academies Act, as well as other Acts going through Parliament at the moment, such as the Cities and Local Government Devolution Bill.

Two things strike me about that reading. One is that we must have the most complex, baroque and byzantine education system in the world, and it does not seem to be getting us very far. The other is that education cannot exist in a vacuum. The noble Lords, Lord Addington and Lord Hunt, are right to have pointed out on several occasions the connections between government policies—for example, the involvement of communities in sport and, as I have said, the Cities and Local Government Devolution Bill, which emphasises devolution. That leads me to believe that there cannot be only one form of governance that is suitable for a school, and that local communities and institutions must have a say. We all know that parental involvement in a child’s education is a very good predictor of success for that child or those children. So local structures are important.

10 Nov 2015 : Column GC472

Amendment 17 raises several interesting issues and questions for the Minister regarding special measures for improvement and consultation. I repeat that not just one system for anything will work. My noble friend has pointed out the investigations and action by the Catholic Education Service.

The Minister may well say that the amendment would make things too complex and too long. The Bill of course gives all power to the Secretary of State for Education, and we are suggesting here that that power should be devolved and broadened. We have heard a great deal in Committee and at Second Reading about how a single day at a failing school is too long for a child. I agree that poor education is a terrible thing, but it is worth looking more closely at what that poor education means. I myself do not think that one day at a failing school will do all that much damage. Poor education might of course be happening in just one subject at the school, or it may be inherent in the school system, which is what we are concerned about. A change of staff may be required, but the amendment suggests taking care to get good governance arrangements to avoid it. I agree that sometimes the speed of change is of the essence, but as the noble Baroness, Lady Pinnock, said, that does not necessarily mean lack of consultation.

We have heard about the possibility of delays in sponsorships. Speaking of speed and change, I remember being a parent governor and the chair of the governors of a primary school in Wandsworth. We had—if I dare use the term—a coasting head teacher. We, the governors, persuaded him to leave. I will not go into the methods used. We then appointed a dynamic, ambitious head and within months the school became a dynamic, ambitious school. Parents and governors knew what had to be done and did it. I am not advocating that as a general theory for change, but there is more than one way of doing things and parents should be listened to.

5.15 pm

On 9 July, Nick Gibb, the Minister for Schools, suggested in Committee in another place that the Bill will,

“‘sweep away the bureaucratic and legal loopholes previously exploited by those who put ideological objections above the best interests of children’”.—[

Official Report

, Commons, Education and Adoption Bill Committee; 9/7/15; col. 284.]

Who are these people? Are they parents or school governors? Nick Gibb also said, strangely, I think:

“We are against not analysis”—

I suppose by that he means logic, reason and research—

“but delays to academisation”.—[

Official Report

, Commons, Education and Adoption Bill Committee; 9/7/15; col. 275.]

Delays in academisation would cut out unnecessary debate, delaying tactics and obstruction of process, and we shall no doubt come to this later on. Sometimes you have to pause, delay and think about what is best for a particular school and for particular children. Parents and the community have a right to a say in that.

I find the Government’s logic regarding consultation on the Bill quite bizarre. Perhaps someone can explain it to me in simple language. For example, where a school is eligible for “intervention”—a term which seems

10 Nov 2015 : Column GC473

to flatter but in fact condemns—consultation is not needed on whether it should become an academy. If it proposes to convert to an academy by choice, the governing body will need to consult. A coasting school, as yet undefined, would be converted with no need for consultation, but a “high-performing school” would be required to consult on academy conversion. It should discuss conversion with staff, parents and others who have an interest and take account of those views before entering into an academy agreement with the Secretary of State. This is a very strange way of going about things. Statutory consultation generally takes place after an academy order has been made, but governors are able to carry out some consultation before making the application. We are seeking to modify some of this by involving RSCs in consulting the local authority, trustees or persons representing foundations or, in the case of an academy school, the person with whom the Secretary of State has made governance arrangements.

I understand that 25% of failing schools are academies, so some arrangements need to be made for dealing with that. I understand that a failing academy can move only to a different academy chain and not out of the system, so we now have a failing academy chain—we are going to come to inspecting chains later—and a school which needs to move to a different chain. Therefore an academy can be set up, fail and be taken over by another sponsor. How long does this take? Surely if there is consultation on this it must take quite a long time to consult trustees and chief executives of trusts. I thought that speed was of the essence here. Academisation can be done quickly. Can it be dismantled quickly? Can it be re-set up quickly? What is happening to those children in the mean time? I look for a response.

Lord Sutherland of Houndwood: My Lords, I cannot but respond to the kind remarks of my noble friend. They were very generous. I could see the word “but” coming and it came. I want to say now, to retain what scintilla of reputation I have in Scotland, that I do not want the Scotsmantomorrow morning to report me as being against democracy. I believe in democracy. It is the least worst system but it works to the best possible effect. It is in Hansardso it must be true.

If there is a need for this tidying-up, I think the amendment proposed by my noble friend Lord Addington does it well. However, I will be interested to hear whether it is necessary. If it is, let us do it and get on with it. One of the things said quite a bit in this discussion is that by implication the government proposal is that there is only one way of changing schools, whereas local authorities have myriad wisdom. I am not sure that is true. I suspect that local authorities are more likely to be monolithic in their response to the need for change than the academy system which, if well regulated—I underline that—encourages variety and different forms of change. These different forms of change and development may well be necessary for the variety of schools in questions.

In terms of democratic accountability, if we say that academies are not the single way, we run the risk of returning to the local authority being the single way. What were they doing when schools started coasting? It is not an immediate process; it is slow progress. What were all these democratic institutions that we

10 Nov 2015 : Column GC474

have—the local education authority, the director of education or equivalent and local councillors—doing? You ask who they can go to. They can go to the local councillor or to their MP.

Baroness Pinnock: I feel that I have to put the case for local councillors and their involvement in local education, since it is being not painted in the best possible light by my noble friend Lord Sutherland. I think that local management of schools came in about 25 years ago; I am looking around for some people who know better than I do. I have been chair of a large comprehensive secondary school in the maintained sector for a lot of that period. It is regarded as good by Ofsted, I am pleased to say, its value added is well over 1,000 and I hope we will continue to do well on the other scores of Progress 8 and all the rest. Its intake is below average nationally and locally. This is a local maintained school with local involvement where things can go right. I worry that our mindset seems to be that only local authorities can create good schools. I do not support that argument because it is plainly not supported by the facts. Equally, I do not support the argument that only academisation can do the same. That is not supported by the facts either.

The facts are that neither the structures of local authorities nor the structures of academies produce good schools. What produces good schools is something much more difficult than waving a magic wand and having a different structure. What creates good schools is good, outstanding leadership; a good cohort of leadership teams supporting the head teacher; a governing body that works well in supporting and challenging the school; and a local authority, or whatever the structure, that does the additional support improvement and provides professional training and development and all the rest of it. We know that that is what creates good schools and good opportunities for children in education, yet we insist on changing structures. But changing education structures does not achieve good schools—we know that.

A school in my own area—a leafy suburb school, as it happens—decided that it would become an academy. Within a year, it was in special measures and required improvement; that is the worst and the lowest possible rating. The school was good when it started, but in a year it went from being up here to being down there. Why? Because of the lack of the very factors that I have just described: failure of the head teacher; failure of the governing body; and no group to support it because it was outside local authority control. That is what we have to look at.

I am passionate about education and passionate about children getting a fair deal. Nowhere else are they going to get a fair deal, except through this route. Yet we insist on talking about structures. For goodness’ sake, let us talk about how we are going to deal with the national shortage of head teachers of any calibre, let alone outstanding ones. That would be a start.

Lord Sutherland of Houndwood: I agree with the noble Baroness’s diagnosis of what makes a good school. That is true. Children, and the way that they are dealt with in the education process, are the focus of this—they have one education. I absolutely share the passion of the noble Baroness.

10 Nov 2015 : Column GC475

Structures will not fix it all, but structures have made a difference. The academy system has made differences that are very important and have improved the lot of many children. When the current chief inspector of Ofsted was put in place to be head of a failing school, my goodness, he turned it around. That was a structural point. Unless the powers are there to do that, that opportunity will be missing, and that is what we are talking about today.

In view of the passion expressed, I have to share again, as I did in my Second Reading speech, that I was involved in declaring the first failing school. It would have been useless to go to the parents, the governing body, the local authority or the local community; they all hated what was said truthfully. That is the other side of the coin.

Where I am still, if you like, swinging a bit in the breeze—this relates to a point made by the noble Lord, Lord Watson—is on the use of the word “must” in Clause 7(2). That does cause me some reservations and worry. Whether it will persist to Report that the Secretary of State “must” make an academy order, I do not know. Sometimes, and the point has been made, drafting in the right leadership and head teacher can help, especially in an emergency situation. My worry about the word “must” is that it may exclude the immediate action that has been taken in the past and could be taken now. Making an academy order and setting up sponsorship will take time, and sometimes the school in question has not got time. So I have that worry and am very interested to hear what will be said from the Government side on this. I will reserve my position on that one until Report.

5.30 pm

Baroness Morris of Yardley: My Lords, I, too, support Amendment 17 and have great sympathy with the intentions behind Amendment 16, which I think raises the same question but addresses it from a different angle. Let us be clear: we all share the same ambitions of all schools being good schools and of action being taken if they are coasting or failing. Nobody is against that and sometimes it is important to restate that, because we get pushed to either extreme in arguing the points. So we are all on the same side in that, but the amendment tries to explore some of the options regarding what action should be taken. That is where the difference of opinion is—on the question of what to do, not on the need to take action. Therefore, we should try to resist accusing each other of not caring about kids in failing schools. That is not why we are in this business and why we are sitting in this Room.

The amendment picks out two or three weaknesses in the Bill. The first thing to do is to address failing and struggling academies in the same conversation and piece of legislation that address other schools. I cannot see that politically there is much wrong with that, and practically I am not sure why one structure should be excluded from the consideration. Therefore, I welcome the fact that what happens to failing academies is brought into this discussion. The only reason for excluding it from the discussion would be either if you believed that there was no such thing as a failing academy, which we know is not the case, or if you could honestly

10 Nov 2015 : Column GC476

guarantee that merely moving it to another academy sponsor would always, in every single circumstance without any possible exception, be the solution. Even if you thought that, I do not know why you would want to put that in primary legislation, because if it is true now, it might not be true next term or the year after or the year after that. That is essentially what is being done in this part of the legislation. It is putting in primary legislation that either an academy will never fail or the solution will always be another sponsor. We are saying that the solution will sometimes be another sponsor but not always, so we should not leave out from primary legislation the option of taking a different course of action.

I think we also agree that an option might be school-to-school support. That might involve getting in good teachers from other schools to lead. Something that we have not taken up as a generic point is that schools need to belong. I believe in interdependence as much as independence for schools. The umbrella organisation under which a school lives, survives and is supported and which challenges the school is important. That is essentially what this argument is about. At the moment, we have two types of umbrellas: we have academy chains and multi-academy trusts—two phrases for the same thing—and we have local authorities. All we are saying here is that sometimes one will be the solution and sometimes it will be the other.

I take the point made by the noble Lord, Lord Sutherland, who is far more experienced than anybody else in this Room in dealing with failing and underachieving schools. I hope he accepts that none of us—certainly not me and I think I can speak for all my colleagues on the Labour Bench—would justify a failing school being with a failing local authority. That would not make sense. The most important point that the noble Lord made was in his contribution to the first group of amendments. He said that you have to ask yourself: if a school is coasting, why has the local authority not taken action? Sometimes you will come to the conclusion that the school has not been well supported by the family of which it is a member and that it would be better off with another family. That is why the Labour Government put lots of schools into academy chains.

However, sometimes the solution is to do something about the local authority. I spent three years in the department doing something about local authorities and I shall pick out just three—Hackney, Islington and Liverpool, on all of which I led the interventions. The noble Lord will remember that they were all absolutely miserable local authorities and miserable families to belong to, but I do not think that any school now would not be proud to be part of Islington, Hackney or Liverpool. The irony is that every one of them had a different solution: Hackney’s was a trust; Islington was put with a not-for-profit partner; and Liverpool got new leadership at local authority level and is now doing well. So I hope that the noble Lord, Lord Sutherland, does not think that, whatever this debate is about, the Labour Bench is excusing poor local authorities.

To be honest, it was the Labour Government who took action against poor local authorities because the Tories before us had not do so; no one had taken

10 Nov 2015 : Column GC477

action by 1997. It was us who brought in the legislation and us who took the action. We have been around long enough to know that sometimes there are good local authorities where you would want to place a school. So should we really say that where you have a failing academy in a good local authority, we do not want a solution whereby it cannot be part of that local authority family of schools? Why can that not be one of the solutions? We are not saying that it must in all circumstances, but why can a failing academy in a good local authority not become part of that family of schools?

Although the amendment does not say so, I would also ask why it cannot become part of a multi-academy trust run by a maintained school. I was in the Lilian Baylis school last week with a Select Committee, and it was utterly outstanding—it was a joy to spend the morning there. However, it is not an academy, so it cannot set up a multi-academy trust. I do not know why you would deny a school neighbouring Lilian Baylis the right to belong to a multi-academy trust set up and led by Lilian Baylis, which is an outstanding and exceptional school. It is not allowed to do it until it becomes an academy. That is the nature of the discussion; it is not about whether to take action but about whether we are closing down options on doctrinaire grounds that would be better left open.

My last question has not been answered, so I take this opportunity to ask it. If Clause 7 goes ahead, it will place an awful lot more responsibility on regional schools commissioners. From my involvement in a number of regions, which are very large, I know that the commissioners are really stretched. I am not confident that they have the resources to do the jobs that are asked of them. If they get these additional responsibilities, will the Minister take this opportunity to let the Committee know what estimates he has made about what extra resources regional schools commissioners will have and what allocation of resources he will undertake?

Lord Sutherland of Houndwood: I shall briefly respond, since I have been challenged on this—and that is good, because I respect my noble friend and what she has achieved over the years, not least in looking at local authorities. There is a separate question of how you deal with local authorities that are not performing; the Ofsted inspection of local authorities is one way of going about it. That is a very important question but the question today, in this Bill, is when you have notification from the DfE or wherever that a school is coasting and the evidence is all there, what you do tomorrow? The Bill suggests a route that has proven evidential foundations. No one is claiming that all academies are perfect; there are some real problems. On the other hand—this is where the point about local authorities comes in, and I want to clarify my own position here—I would not want to hand that school back to the local authority under which it developed the position of either coasting or failing. There has to be a route through that, which is what the Bill attempts to do. The local authority has all its democratic processes, education committees and the lot—they are all there. If the school was allowed to drift into coasting status, action is needed, and the last action I would recommend is to go back to the same local authority.

10 Nov 2015 : Column GC478

Baroness Hughes of Stretford: I shall speak briefly in support of the amendment. My noble friend said more eloquently than I can all that I have to say, so I shall keep my remarks brief.

I feel conflicted in listening to this debate because the Government have taken such an intransigent line on there being only one solution to improve the performance of schools—that is, to make them academies. Because of that, I feel pushed into a position that is not actually mine. I do not think that local authorities are the be-all and end-all. Like my noble friend, I, too, chaired improvement boards in many local authorities when I was a Minister—including in Manchester, which was not easy what with coming from there. I was quite clear what my responsibilities were: to call the local authority to account. I think many Ministers have done that, too. The dichotomies that are inevitably a result of the position that the Government have taken are very regrettable because they prevent us debating the real issues about how we can best put the ingredients into schools, as the noble Baroness, Lady Pinnock, identified them, that will help them all succeed.

I take issue with three points. The reason why I support the amendment is that it is trying to keep options open and to make the process of deciding the way forward, when a school is coasting or underperforming, one that must consider a range of options instead of going down only one route. The first point, as I said, is the Government’s assumption that academisation can be the only solution. My noble friend is quite right: you can sustain that position only if you think that that will in every single circumstance, 100%, improve every school. We know from the evidence, although the Government are reluctant to talk about it in any reasonable way, that that is not the case. Academisation, certainly over a period of time, does not necessarily produce the ingredients that we know are required for excellence in education.

Secondly, we have heard a lot of comments about this Bill handing responsibility and accountability for performance back to professionals, and away from local authorities who have not held schools to account. Let us just be clear that when schools underperform, the first people responsible are the head teacher and the teachers in that school. They are responsible for that. Yes, local authorities have had a duty to call those schools to account but not all professionals are good ones; not all head teachers are good, either. I do not want that point to be lost because so far in this debate it has been.

Thirdly, I feel very strongly that the provisions in the Bill that would completely cut out parents from any say in the process of what happens to an underperforming or coasting school that their child attends is completely wrong and cannot be justified. My children are now well grown up and I am into a generation of grandchildren. However, if I was directly responsible for children in such a school I would be absolutely incensed that I could have no say and would not be called to a meeting. That is wrong in principle. In terms of the outcomes that such a process would achieve, it would be regrettable.

10 Nov 2015 : Column GC479

I support the spirit of this amendment for those reasons. We need a much more nuanced debate and to retain the possibility that there are other ways forward for some schools. We certainly should involve parents.

The Earl of Listowel: Before the Minister replies, I want to ask the noble Baroness, Lady Pinnock, if she might help with a bit of clarification. Before asking her that question, I thank the noble Lord, Lord Watson, for his helpful comments earlier. Perhaps I should have said that I have an interest in this area: I am a landowner and I am interested in property development.

I think the noble Baroness also attended the meeting at the beginning of the week with the head teachers and regional schools commissioners. What I found most interesting about that was the impact on governance that academisation seems to have. The noble Baroness will be aware that the Chief Inspector of Schools has been concerned for quite some time about the variability in the quality of governance in schools. There was quite a discussion of governance in that meeting. What struck me listening to that discussion was that perhaps the academy process is a little like Teach First—or, for social work, Step Up—because it suddenly gives the opportunity to bring a whole new pool of talent, drive and expertise into the governing bodies. It seems possible that one justification for the Government’s process is that as a systemic approach it is a way to bring a whole slew of expertise into the governance and leadership of schools that is not so easily available by the normal process. I have not had experience as a school governor. Would the noble Baroness, Lady Pinnock, care to comment?

5.45 pm

Baroness Pinnock: I am happy to respond. I am still a school governor and many noble Lords will be aware that the governance of maintained schools has had to change, and rightly so, for the reasons that have been given. By September of this year, school governing bodies had been completely overhauled. Many school governors are now co-opted for their specific expertise or experience. On my governing body we have two people who work in local businesses, an IT expert, someone from the finance sector to help with that side of things, as well as a couple of parent governors, staff governors, and by choice, a local authority governor. School governance has been substantially strengthened by these regulations and, where it is done well, they will inject two important elements. One is expertise and understanding, along with keeping the involvement of staff members and parents, and the other is that it is locally based. At the school where I remain on the governing body, it is local business people who are involved. That would be true across the piece, which is to everyone’s enormous advantage.

The Earl of Listowel: I thank the noble Baroness.

Lord Nash: My Lords, I will speak to Amendments 16, 17, 21 and 26 to 29, tabled by the noble Lords, Lord Addington, Lord Watson, Lord Hunt and the noble Baronesses, Lady Massey and Lady Bakewell. I will try to keep my remarks to the point but, before doing so, I will respond to a couple of accusations made by the noble Lord, Lord Hunt. The first, that we are being

10 Nov 2015 : Column GC480

dishonest, is quite an accusation and I would take great objection to it if I thought he really meant it. He said that it is dishonest that we should just pass a law turning every school into an academy. Maybe if he feels that is something we should do, he would like to bring an amendment to that effect. I made it clear last week in response to the noble Lord, Lord Knight, and again in a letter this morning which I hope he has now received, that the default position for a coasting school is not to become an academy. I suspect that in many cases they may well be able to improve sufficiently on their own or with limited support. I hope I have made that absolutely clear.

Secondly, there was a suggestion that I never mention maintained schools. That is partly because the Bill is about academies and I am trying to keep to the point. Of course there are many successful maintained schools and I pay tribute to them. The noble Baroness, Lady Jones, took me on a most enjoyable trip to Morpeth School in Tower Hamlets, which I was particularly impressed with. I was struck by its approach to CPD.

Lord Hunt of Kings Heath: I am most grateful to the noble Lord for giving way and for his comments. This comes back to the points raised by my noble friends Lady Hughes and Lady Morris. From the tone of the Bill, and the fact that schools will be forced to become academies because the Secretary of State has no choice, it is clear that in the end that is the option which the Government wants. The point raised by my noble friend Lord Knight is that the Government really believe that academisation is the only route. They do not understand why any maintained school does not want to be an academy, despite the fact that many of us are involved in very successful maintained schools which do not. None the less, the Government have decided that they all ought to be academies. This is quite clearly the policy. Why on earth do they not just do that? What I do not understand is why we have to go through the charade that we are debating today? With respect to the Minister, he has to be forced into saying something positive about non-academy schools because his whole tenor throughout this, is to quote examples from academies. I must challenge him by asking why the Government will not come clean on what their policy really is. I just do not understand it.

Lord Nash: I will try and make it clear again. Our approach to failing and inadequate schools, category 4 schools, is that they must become a sponsored academy. That is not our approach to coasting schools, as I hope I have made absolutely clear.

The amendment seeks to address noble Lords’ concerns on a number of points. First, that academies as well as maintained schools should become eligible for intervention when they fail or meet the coasting definition. Secondly, that the Bill proposes to remove consultation on academy conversion when a maintained school is judged inadequate. Thirdly, that a duty is placed on the governing body and local authority to progress academy conversion in such circumstances, and finally that, if necessary, the Bill provides for the Secretary of State to revoke an academy order. I shall deal with these points in turn.

10 Nov 2015 : Column GC481

First, on failing and coasting academies, I agree entirely with noble Lords that failure and wider underperformance must be tackled wherever it occurs, whether in a maintained school or in an academy. As I set out when we debated the coasting definition last week, academies are governed by a different legal regime from maintained schools. They are run by charitable companies known as academy trusts which enter into a contractual relationship with the Secretary of State through the signing of a funding agreement. It is this agreement that governs how an academy will operate and how the Secretary of State will hold it to account for its performance.

The vast majority of the more than 5,300 open academies and free schools are performing well. In the small number of cases where we have concerns, I can assure the House that regional schools commissioners are already taking swift and effective action to drive improvements and, subject to the passage of this Bill, RSCs will hold all academies to account against the coasting definition just as rigorously as they will maintained schools. To demonstrate our commitment to continually reviewing our approach and ensuring that poorly performing academies are robustly challenged, we have already added a new coasting clause to the model funding agreement showing explicitly that we intend to tackle all schools which are coasting. This gives the Secretary of State formal powers to terminate a funding agreement where an academy is coasting. Even where academies do not have this specific clause in their agreement, I can assure noble Lords that RSCs will still hold them to account against the coasting definition.

Lord Addington: Could the Minister just repeat where that is? That is the real essence of my amendment. Could he repeat where the intervention on coasting academies is?

Lord Nash: It is in the new model funding agreement which is on our website and I can send the noble Lord a copy.

Lord Addington: Thank you.

Lord Nash: RSCs have already shown they can act quickly to bring about improvements. Since September 2014 when RSCs first took up post, they have issued 58 pre-warning and warning notices to academy and free school trusts. In the same period they have also moved 83 academies and free schools to new trusts or sponsors, compared with 13 in the previous academic year. For example, Ipswich Academy in Suffolk was judged to require special measures in January 2015. The RSC acted swiftly to identify a new sponsor for the school and Paradigm Trust has taken on the school from September 2015. Ofsted undertook a monitoring visit in late September and judged that leaders and managers were taking effective action towards the removal of special measures.

In addition, Thetford Academy in Norfolk was judged to require special measures by Ofsted in February 2013. We brought in Inspiration Trust as a new sponsor in September 2013 to run the school. That was seven months later, ascompared with the case to which the noble Lord, Lord Addington, referred, where 22 months

10 Nov 2015 : Column GC482

later Uplands School has yet to become an academy—I will give some more detail on that in a minute. Provisional 2015 results indicate that even under our tougher accountability standards, 47% of pupils achieved five good GCSEs compared to 28% in 2011. Ofsted inspected the academy in December 2014 and judged it to be good with outstanding leadership, describing it as, “transformed beyond recognition”.

These are just two examples of the robust, decisive action that RSCs are taking to tackle underperformance, and of the positive impact they are already having on the school system. Therefore the proposal—that where an academy is judged inadequate or meets the coasting definition it should be eligible for intervention—does not need to be introduced in this Bill as RSCs are already taking action to secure improvements where necessary.

I turn now to the issue of removing consultation. Our manifesto committed to turning every failing maintained school into a sponsored academy, and Clause 7 makes provision for that. As I said in my opening remarks last week, we place children first in our school system and the purpose of the Bill is to ensure that children do not spend any longer than possible in a failing school. A day lost in a child’s education is a day lost forever, and I beg to disagree with the noble Baroness, Lady Massey, on this point. We believe that there needs to be a clear course of action when a school is judged inadequate and that there cannot be any question or debate about what the right solution for that school might be. We must be completely clear, as our manifesto was, that becoming an academy with the support of a sponsor will always be the solution where a school has failed. Every minute spent on consultation is a minute that could be spent on turning the school around. Clause 8 therefore removes the requirement for the governing body to consult on whether the school should become an academy in such circumstances. It is clear that it would be nonsensical to carry out a consultation when our manifesto was so clear that the sponsored academy solution would be the outcome in this scenario. I was delighted to hear the noble Lord, Lord Watson, say in Committee last week, “Yes, the Government have the right to implement their manifesto”.

It is crucial to remember that consultation would be removed only in the most serious cases of underperformance. Where a school voluntarily seeks academy status, I agree completely that the school community should contribute its views. In that instance, the governing body is choosing to enter into new arrangements. However, where a school has failed or is otherwise causing concern, there is no choice. Parents will want to see swift and decisive action to bring about urgent transformation.

I want to re-emphasise that this is not about removing democracy or excluding parents, as some have claimed both in the House and in the other place. It is about ensuring that there is a clear course of action in place to improve the very worst schools in our country. We demand immediate action in other instances of failure, such as when an NHS trust is placed in special measures, so why should we expect any less for our schools? It takes on average a year from the time a school is judged inadequate to open as a sponsored academy.

10 Nov 2015 : Column GC483

Lord Hunt of Kings Heath: I cannot resist intervening on that. The whole point is that when we have a failing NHS foundation trust, there are a number of options available to the regulators, whether it is the NHS Trust Development Authority or Monitor; it is not just one-size-fits-all. That really is all that noble Lords are saying here. When it comes down it, if you substitute “may” for “must” in the crucial clause, it is still quite clear where the thrust of the policy is going, but at least that would give some discretion to Ministers. There might be some circumstances where they might want to look at a different option.

I am glad that the Minister has raised the issue of what happens in relation to NHS bodies because I am absolutely clear that both in law and in practice there is a range of options. Something happened to a trust that I was involved in, and the chairman and chief executive of a neighbouring trust have basically become the chairman and chief executive of that one. As I say, there are options. What the Government are saying is that there will be absolutely no option whatever. Actually, I find it quite extraordinary that Ministers do not want to give themselves a little discretion and headroom.

Lord Nash: I note the noble Lord’s intervention. He has not disappointed me; we discussed this morning where comparisons might be made with the NHS, so I knew that he would jump up because he has vast experience in the matter of the health service. My point is that action in the NHS is immediate and swift. I shall come on to explain the “must” and “may” point. There are circumstances in which the Secretary of State may be able to revoke her academy order, so it would not always be “must”.

As to the point I made about NHS trusts, I fundamentally agree with those who say, “Should we not have a similarly urgent and clear response to tackling school failure?”. On too many occasions we have seen local authorities and governing bodies putting up barriers and delaying processes in order to prevent the school becoming a sponsored academy. A case in point is Uplands, which the noble Lord, Lord Addington, mentioned earlier, which has been in special measures for 22 months. The IEB was appointed by the local authority in December 2013. It considered a number of proposed sponsors, a missed opportunity for much-needed change. I first wrote to the local authority confirming that I was minded to intervene in February of this year and, after much debate and challenge, the Secretary of State was finally able to reconfirm her decision to appoint her own IEB in September of this year. This was especially needed in the light of Ofsted’s most recent inspection in June confirming that the school was not making enough progress to remove special measures under the local authority’s IEB. A sponsor match has now finally been able to be made.

6 pm

Lord Addington: The important thing about Uplands is that it has lost half its teachers. Half the teachers at the school have resigned. That is what has caused the headlines; nothing else.

10 Nov 2015 : Column GC484

Lord Nash: I am happy to introduce the noble Lord to the people involved in this because the lack of progress under the local authority was, I am afraid, extremely disappointing.

Another example of delay was the Warren school in Barking and Dagenham. The Warren was judged inadequate by Ofsted in February 2013. The governing body and the local authority were opposed to academy status and in October that year the existing governing body voted against the sponsored academy solution. When the Secretary of State decided to appoint an IEB and issue an academy order, the local authority and the governing body made an application to the High Court to prevent this from taking place. When the case finally got to court in July 2014, the judge dismissed the claim on all counts. The school finally opened as an academy in September 2014 with the Loxford Trust, some 19 months after first being judged inadequate by Ofsted.

I emphasise that although the Bill proposes to remove the formal requirement to consult on academy conversion for failing schools, parents will still have opportunities to have a say in the future of their child’s school. Once a sponsor has been identified for a school, it is in their interests to engage parents and begin to build a positive relationship with them from the outset. They will want to involve parents in their plans and seek their views on their proposed approach for bringing about improvement during the conversion process. I shall say more about engaging parents in these situations in the later group of amendments.

The noble Baroness, Lady Morris, made some points to which I would like to respond. I pay tribute to her chairmanship of the Birmingham Education Partnership. I was meeting with Sir Mike Tomlinson this morning and we were both singing her praises. Lilian Baylis is of course an outstanding school. We would be delighted for it to become an academy and a sponsor. The issue that we have, we can talk about this in more detail offline, is that the best way to get the maximum organisational benefits out of a multi-academy trust is for it to be in the same legal structure. No one can argue with that. We can go into a lot of detail on it but that is the practical reason.

As for resourcing the RSCs, I made a point on this earlier but we will be resourcing up the RSCs to cater for more work. I cannot comment on this precisely at the moment but I will be able to say quite a lot more about it once the spending review is out of the way—certainly, I hope, in time for Report.

Turning to the duty to facilitate and the power to direct, noble Lords have proposed Amendments 26 and 27, which would have the effect of removing the requirement for governing bodies and local authorities to facilitate the academy conversion of schools rated inadequate by Ofsted. However, the amendments would still result in the governing body and the local authority having to facilitate conversion in other cases, such as when an academy order is made for a school that meets the coasting definition or has not complied with a warning notice.

Amendment 26 removes the requirement for governing bodies and local authorities to facilitate the conversion of inadequate schools. However, it is precisely these schools where there is a real need to intervene quickly

10 Nov 2015 : Column GC485

and turn the school around without local authorities or governing bodies blocking or delaying progress. We have seen too many instances over the past five years where conversion to academy status has been delayed through long debate and delaying tactics, such as the refusal to provide important information and reluctance to take vital decisions. One example of progress being unnecessarily delayed is the case of Beechview Primary School in Buckinghamshire. The school was first judged inadequate by Ofsted in January 2013 and, despite numerous discussions with the department, the local-authority-appointed IEB consistently refused to vote in favour of becoming a sponsored academy. A further Ofsted inspection in December 2014 rated the school inadequate for a second time, and a monitoring visit in April 2015 found that the local authority had been unable to bring about the improvements needed. The department tried to restart the conversation about sponsored academy status but the IEB remained unsupportive and went on to discuss alternative options with the local authority, including amalgamation with an infant school, as a way of avoiding sponsored academy status. However, at long last, in October 2015 the IEB voted for Sir William Borlase’s Grammar School to be its sponsor. Beechview is expected to open as an academy in 2016, more than three years since it was first judged to be failing its pupils.

To address the issue of unnecessary delays, Clause 10 will ensure that where an academy order is made in respect of a school that is eligible for intervention, the governing body of that school and the local authority must take all reasonable steps to facilitate the conversion of that school into a sponsored academy. In the majority of cases, the effects of Clause 10 should ensure that governing bodies and local authorities take the necessary actions to ensure a sponsored academy solution is in place quickly. However, Clause 11, which allows the Secretary of State to direct a governing body and local authority to take specified steps to facilitate the conversion, is necessary in the event that they are not fulfilling their duties or that more specific timescales or steps need to be set. Amendment 27 seeks to remove Clause 11 in the case of inadequate schools. It is crucial that regional schools commissioners have the benefit of the duties and powers in Clauses 10 and 11 in relation to inadequate schools. These provisions are crucial if we want to be able to strengthen our ability to deal with failure and to do so more swiftly.

Before concluding, I shall finally speak to Amendments 28 and 29, which probe Clause 12 regarding the power to revoke academy orders. In particular, they probe its purpose in relation to schools rated inadequate by Ofsted where Clause 7 has been clear that an academy order must be made. I have used this debate to reiterate the clear commitment in the Government’s manifesto that failing schools will become academies and that academy orders must therefore be made whenever a school is judged inadequate by Ofsted. There will, however, be rare circumstances where an academy order needs to be revoked. Clause 12 addresses this by inserting a new Section 5D into the Academies Act 2010. This will allow the Secretary of State to revoke any academy order issued to a school which is eligible for intervention, including in a failing school where an academy order must be made.

10 Nov 2015 : Column GC486

We envisage that in the case of failing schools there might be a very small number of exceptional cases where the Secretary of State decides that academy conversion should not be pursued. A school may, for example, prove to be unviable and closure may sadly be inevitable, or it may have gone into special measures for a very specific safeguarding issue which has been rectified. There may be other examples in future and while we expect those examples to be exceptional, it would be wrong to remove the Secretary of State’s power to revoke an academy order on any inadequate school as this amendment suggests. I therefore urge the noble Lord to withdraw his amendment.

Baroness Massey of Darwen: Will the Minister elucidate two things for me? First, I understand there is a consultation on what “coasting schools” will mean. When will that consultation be finalised, and when we will have a definition of coasting schools? Will the Bill proceed to its final stages before we have that definition? What is the state of the consultation?

Secondly, the Minister glorified, for want of a better word, the academy system. We have heard little from him about the successes of maintained schools, which the noble Baroness, Lady Pinnock, so eloquently described. Nor has he justified why a coasting school will be converted with no need for consultation. I do not understand what happens if you consult after the process; that does not seem to be consultation. A high-performing school is not required to consult. It should consult staff, parents and others who have an interest and take account of those views before entering into academy arrangements. This seems a very strange thing to do. Some people can be consulted, and some people cannot. I cannot understand why this should happen.

Lord Nash: The consultation will close on 18 December and we will announce the findings in the spring. Unlike in failing schools—

Lord Watson of Invergowrie: In looking at the document, that is indeed what it says. The Minister, I am sure, would expect the Bill long before then. Would he not?

Lord Nash: We will, of course, take into account the sponsors to the consultation before finalising the regulations.

Lord Watson of Invergowrie: If that is the case, if the Bill did not become law, what would apply with regard to “coasting” in the interim?

Lord Nash: The definition is in the regulations, not in the Bill. That is what we are talking about in the consultation.

Unlike failing schools, intervention on coasting schools will not be automatic, as I have said. Schools will be given time to demonstrate their capacity to improve sufficiently, either on their own or with assistance. There will already have been a dialogue, likely over quite a long period of time, about a school’s plans to bring about improvements and an opportunity to share views with parents and others. I think that I have finished. In view of what I have said, I ask the noble Lord to withdraw the amendment.

10 Nov 2015 : Column GC487

Lord Addington: My Lords, on the definition of “coasting”, I wonder how much the Treasury Bench wishes it had got that in place before we started. We have gone round that before and will probably go round it again.

Lord Nash: We published the definition in June.

Lord Addington: I know, but that is an administrative thing. We should have something in the Bill. Much of this discussion is about why we cannot have things in the Bill. That seems to be quite a good answer but I did not find that regulation.

My amendment is about what happens when an academy is coasting. If there were a reference to it, or if we knew that it would be published, this amendment would not have gone down. I did not table the amendment because I could not think of anything else to do; there are novels I could read and other activities I could do. But I had a look at this and it seemed that academies were excluded from the state of something being wrong, such as “coasting” or underachieving. Everyone else who looked at it said, “Yes, that seems to be correct”.

I hope that on Report we will get a little more definition and guidance on when these things will come through. At the moment, we are still groping around. Some things have been published—indeed, some unfinished things have been published—so we are constantly looking. I will read the document, of which I was not aware, and I may find that it addresses the point. At the moment, though, we have the idea that some schools are bad but that does not seem to apply to half or more of the schools in the country. That is totally inequitable and removes a way of intervening to help pupils. Surely a little more time needs to be given to ensuring that we can find where the information is. We are still going through consultations and the argument on the definition of “coasting” is far from over, so we need a bit more time and effort on that.

The noble Lords on my physical right presented an interesting amendment, and I am sure that we will have a discussion about that and see what we can do about it at another stage. At the moment, though, as we are in Grand Committee, I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Amendment 17 not moved.

Clause 7 agreed.

6.15 pm

Amendment 18

Moved by Baroness Sharp of Guildford

18: After Clause 7, insert the following new Clause—

“School conversion: children with special educational needs and disabilities

After section 4 of the Academies Act 2000 insert—

“4A School conversion: children with special educational needs and disabilities

10 Nov 2015 : Column GC488

Before entering into Academy arrangements in relation to a school which has been the subject of an Academy order under section 4(A1), the Secretary of State shall—

(a) provide guidance to the person with whom the arrangements are to be entered into about collaborating with other schools to provide any necessary specialist provision for children with special educational needs and disabilities, in cases where the individual school is not able to provide it;

(b) require the person with whom the arrangements are to be entered into to provide details of their plans to support—

(i) children with special educational needs and disabilities who have an education, health and care plan; and

(ii) children with special educational needs and disabilities who do not have an education, health and care plan.””

Baroness Sharp of Guildford: This is a probing amendment and it comes from the Royal College of Speech and Language specialists, who are quite worried about the present position of special educational needs in schools.

As noble Lords will know, following the enactment of the Children and Families Bill, which we dealt with in the previous Session, there have been considerable changes in the treatment of children with special educational needs. What used to be called statements are now education, health and care plans. Approximately 2.5% of children in schools have the equivalent of a statement. Many local authorities are way behind with the issuing of education, health and care plans. Therefore, at the moment there is a mix of the two. Somewhere in the region of 15% or 17% of children have special educational needs. These are now dealt with in the school framework, and we have done away with the categories that used to be called school action and school action plus. Now, it is the responsibility of the school to identify children with special educational needs and to make provision for them.

The speech and language specialists are particularly concerned with those who have special educational needs in speech, language and communication. Something like 7% of children have such needs, and around 50% of those will come from disadvantaged homes—those who are eligible for free school meals. This is the most prevalent group of children with special educational needs in primary schools.

One can see that if children come to school not able to talk properly—in some cases, not talking at all—they cannot be taught to read. The first thing you have to do is to get children chatting away. This is what many reception classes are all about: getting the children to interact with each other and talk to each other and, from that, learning how sounds are formed and so forth.

As I said, the speech and language specialists are very concerned that children with SEN, particularly those with speech, language and communication needs, who do not have statements or EHC plans may not receive the specialist support that they need to enable them to fully engage with their education. Without that support, they are at risk of not having the best start in life and may be unable to achieve their potential, both at school and in life. The speech and language specialists are trying to get the Government’s thoughts on this.

10 Nov 2015 : Column GC489

The amendment does two things. First, it is designed to address whether schools will be encouraged and supported to collaborate where an individual school does not have the necessary level of specialist support for children with special educational needs and disabilities, including speech, language and communication needs. Secondly, it deals with how academies will provide support for those children with EHC plans and, crucially, given the vast number of children with special educational needs and disabilities who do not have EHC plans, those without them. It also addresses whether the Government will keep under review specialist provision for children with special educational needs and disabilities in schools of all types, both for children with EHC plans and for those without.

As I said, this is a fairly straightforward amendment. It requires reassurance from the Government that where in the past children have had specialist support, they will continue to get the support that is necessary. This is particularly true in primary schools, where the help of the specialists is particularly valuable to teachers, some of whom do not have the competence to cope. I beg to move.

Baroness Perry of Southwark: My Lords, I am very pleased indeed that the noble Baroness has tabled this probing amendment. I have for some time been very closely involved with a charity called I CAN, which works with children with severe communication difficulties. Working with the charity, I have been made aware of how extremely specialised this treatment is. Many of these children are speechless, not because they have any physical disability but because of severe emotional difficulties, and getting them to the point where they can engage in any kind of intelligible conversation is a hugely long and difficult path.

One of the most moving experiences was when the people who work with these children in specialist units demonstrated that these children can sometimes sing when they cannot speak. About eight or nine of these children came in front of us and sang, and you could hear how rusty and unused their voices were because that is the only time they use them. I am therefore very conscious of how important it is that specialist help is available. Of course, good teachers will work hard and some of them will succeed in getting these children to speak, but the idea of making sure that through collaboration they are able to have really specialist help is very important, and I look forward to the Minister’s response.

Lord Addington: My Lords, it is always something of a relief when somebody from our Bench beats me to the punch on special educational needs. The idea that you need to enter into collaborative arrangements to get specialist help, especially if it is a low-frequency, high-need problem that has not got into the realms of having the label of a plan around it, is a long-term problem. It is not about just this one group. It is very good practice to bring in help and support from other schools. How this could be addressed and helped in any way is something that we should have a look at. It is a very sensible use of resources and is a good way forward. If you have a way forward, even for those at the less severe end of the scale, you should spread it

10 Nov 2015 : Column GC490

around outside your own school. It is obvious that you should be doing this. I take on board what the noble Baroness, Lady Perry, has said and say to the Government: how are you going to do this? This really is very sensible. It is not doctrinaire; it is just sense.

Lord Sutherland of Houndwood: My Lords, as one who can speak but not sing, I shall speak very briefly. I thank the noble Baroness for her amendment. It gives me the chance to clarify the position on the earliest entrants to school in their earliest days in school. How long does it take before support becomes available? It has been put to me that some children require this plan to be drawn up, which may take time, before the support, of whatever kind, is available. Anything that can be done to advance that will clearly be to the advantage of the child. The younger you start, the better.

The Earl of Listowel: My Lords, this amendment prompts a question in my mind, which the Minister might be able to write to me about. Some schools are better at catering for children with special educational needs, so they attract more of them; they get a reputation as being good at it. One would not wish those schools to be penalised because they happen to be good at working with children with special educational needs. In the metric that the Government are developing to judge progress and whether or not a school is coasting, I hope we can be assured that over the three-year period there is not a risk that we penalise a school because it is very good at working with children with special educational needs. The children may not make so much progress academically but they will have been given excellent support in other ways. I hope that makes sense.

I will say one other thing. I can see that the notion I expressed earlier about allowing children to fail, particularly children in care, is a difficult concept, which I should probably correct somewhat. What I was trying to say is: allow children to fail, fail and fail again until they are successful, and each time they fail allow them not to feel so badly about failing that they do not want to try again but allow them to keep on trying until they are successful. Obviously, ideally one wants to help them to be successful the first time round.

Baroness Sharp of Guildford: I apologise for speaking again here, but perhaps I may add something. I am the special educational needs governor of a primary school, and when the noble Lord, Lord Sutherland, was talking about the time it takes to get a statement and so forth, I was thinking about the cost of supporting children with special educational needs. As noble Lords will know, a primary school receives about £4,000 a head, and the average cost of supporting those with special educational needs is about £8,000. It can vary from £4,000 to something like £16,000 or £17,000 if there has to be an extra teaching assistant because the child is disruptive. On average it takes a couple of years to get a statement for those who are at the extreme end and it will cost about £16,000. A small primary school finds it very difficult to cope in terms of resources because budgets are so tight at the moment.

10 Nov 2015 : Column GC491

The Earl of Listowel: I suppose what flows from that is that the educational attainment of other children may not progress as fast as it might because the resources are focused on the most disadvantaged children. So, again, a primary school that is good at attracting children with special educational needs may appear to perform less well—indeed, it may actually be performing less well—academically, although it is doing a good job with children with special educational needs, because its resources are being spent on those children rather than on the wider population.

Baroness Sharp of Guildford: I remind the noble Lord that schools receive extra resources for those young people—especially now, with the pupil premium. However, there is an overlap between the two groups and, although we have to be careful to ensure that the pupil premium resources are not spent exclusively on those with special educational needs, there is a reason to use some of those resources for some of the activities.

Baroness Hughes of Stretford: Before my noble friend Lord Watson speaks, perhaps I may ask a question. This is an important amendment and it made me realise that I did not know terribly much about what academies have to do in relation to children with special educational needs and disabilities. Can the Minister tell us—if not today then in writing after the Committee—what information schools have to provide, when they are to become academies, about the arrangements that they will make for children with special educational needs and disabilities? Secondly, what statistics does the department have on the numbers of children with SEND who are currently in academies, compared with those elsewhere in the education system?

Lord Watson of Invergowrie: My Lords, I am not sure which Minister will respond to this debate—I see it will be the noble Baroness. I am sure that she will tell us that the amendment is not necessary, but I hope she will say that that is because the two requirements in it are already in place. She is nodding—and if that is the case, it is most welcome.

The issue of special educational needs is much under estimated and is not fully appreciated by many people. Like other noble Lords, I have been in contact with the Royal College of Speech and Language Therapists, which provided an interesting briefing with some rather worrying statistics. Two in particular stood out for me. First, one in five of all pupils has a special educational need of some sort; that represents about 1.6 million people in England. Secondly, 50% of children in areas of social deprivation have significant language delays, which of course have all sorts of other spin-off effects, not least the fact that children with vocabulary difficulties at five are significantly associated with poor literacy, mental health and employment outcomes in adult life. So it is important that schools deal with those issues as far as possible.

While the noble Baroness’s initial response is encouraging, we need to be clear whether there is any tendency—I am not aware that there is one and perhaps I could ask whether figures are available—by academies to exclude more children with special educational needs, like for like, than maintained schools. I would

10 Nov 2015 : Column GC492

be concerned if that were the case. Certainly, the last part of the amendment, proposed new paragraph (b)(ii), which talks about,

“children with special educational needs and disabilities who do not have an education, health and care plan”,

is the most important because those children are most at risk. The school itself has to decide, in place of the plan that exists for other children, what it will do and how it will care for those children. I suppose it is self-evident that some schools do it better than others. This is not a division between maintained schools and academies. It is obviously more challenging to deal with children with special educational needs if there are only a few of them than if there is a significant group of them within the class and perhaps teachers can specifically be there full time to care for their needs.

With those points and the particular question about the comparison between academies and maintained schools, I await the Minister’s response with interest.

6.30 pm

Baroness Evans of Bowes Park: My Lords, Amendment 18, tabled by the noble Baroness, Lady Sharp of Guildford, concerns provision for pupils with special educational needs and disabilities at schools which have been judged inadequate by Ofsted and will therefore become academies with the support of a sponsor. This amendment would mean that before a sponsor could take on a failing school, it would have to submit detailed plans about how it proposed to support pupils with SEN and disabilities, both those with an education, health and care plan and those without. Where there is doubt that the individual school would be able to offer specialist provision for these pupils, the Secretary of State would have to provide guidance to the sponsor about how collaboration with other schools could provide this. The purpose of the Bill is to ensure that when a school has failed there will be swift, decisive action to bring about urgent transformation. We do not want this to be unnecessarily delayed.

In response to the noble Earl, Lord Listowel, we have set out in the draft Schools Causing Concern guidance that the number of pupils with SEN should be one of the factors that RSCs take into account when determining the best course of action for a coasting school, so they will consider it. While I recognise the noble Earl’s concerns in this area, we believe that this amendment is unnecessary and I will set out the reasons why. I reassure noble Lords that we have a robust system in place to ensure that academies are identifying and addressing the needs of pupils with SEN and disabilities—a system that we reformed extensively only last year. All academies are subject to the same requirements and expectations as local authority-maintained schools in their provision for pupils with SEN and disabilities.

To address the concern that the noble Baroness raised on behalf of the Royal College of Speech and Language Therapists, we are not just talking here about those students with more complex needs, who qualify for education, health and care plans. We have also strengthened requirements on schools in relation

10 Nov 2015 : Column GC493

to how they support all students with SEN. The noble Baroness, Lady Hughes, asked about that system. It includes the requirement for schools to produce a SEN information report, which must be published on their websites. The report must describe the kinds of special educational needs for which provision is made at the school and information about the school’s policies for making provision for all pupils with SEN. The report must also describe how it involves other bodies, including health and social services bodies, local authority support services and voluntary organisations, in meeting the needs of pupils with SEN and supporting the families of those pupils.

As I have said, academies must follow the same requirements on SEN provision that apply to maintained schools. The sponsor taking responsibility for the failing school must therefore ensure that the school complies with all these requirements. This means that information about the academy’s provision for SEN and how it will collaborate with other organisations as part of that provision must be available, even without this amendment. Sponsors taking on a new school will have to give careful consideration as to how the needs of pupils with SEN at the school are met and whether they can put any additional support in place.

An example, particularly drawing on the collaboration that the noble Lord, Lord Addington, mentioned, is Dorothy Barley Junior School and Special Needs Base, which became a sponsored academy in 2013. The sponsor identified for the school, REAch2, has “inclusion” as one of its founding principles, and took care to consider the potential impact of academy conversion on SEN pupils. REAch2 committed to make provision for children with SEN through inclusion in mainstream classes and, where necessary, outside class. The trust already included a number of primary schools with specialist units providing support for children with SEN—including a specialist speech and language unit at Aerodrome Academy in Croydon, a centre for children with autism at Tidemill Academy in Lewisham and a specialist unit for children with autism and ADHD at Hillyfield Academy in Waltham Forest—so it had strong experience of delivering SEN provision and managing specialist units. We entirely agree that collaboration really helps in this area. Local authorities will of course retain responsibility for services such as education, health and care plans and for the assessment and monitoring of SEN provision once a school becomes an academy.

Academies are inclusive schools which play a full part in providing for children with SEN and disabilities. The noble Baroness, Lady Hughes, asked for some figures. Sponsored academies have a higher proportion of pupils with SEN than the average across all state-funded schools. In January 2015, 17.3% of pupils in sponsored secondary academies were identified as having some form of SEN, compared to 14.3% of pupils in all state-funded secondary schools. In relation to sponsored primary academies, 17% of pupils were identified as having some kind of SEN, compared to 14.4% of pupils in all state-funded primary schools.

The noble Lord, Lord Watson, asked about exclusions. I can reassure him that there is no trend suggesting that academy exclusions are more likely to be overturned.

10 Nov 2015 : Column GC494

Academies and maintained schools have the same rate of reviews resulting in the independent review panel directing a school to consider reinstating a pupil.