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Education and Skills Bill

I have given a good deal of attention to Part 4 following the concerns raised by the Independent Schools Council and by your Lordships, particularly the noble Baroness, Lady Morris, with whom I have been in frequent communication on this subject. Much of Part 4 is non-contentious, but three concerns have been raised: first, the proposed transfer of the registration and regulation of independent schools from my department to Ofsted; secondly, the proposed new statutory standard relating to leadership and management; and, thirdly, the proposed repeal of Section 347 of the Education Act 1996. Having considered these three concerns, I believe that I can meet them all to the satisfaction of the Independent Schools Council and also, I hope, to the satisfaction of the Committee. Let me take them in turn. First, on the registration and regulation of independent schools, having taken a long, hard look at the best estimates that we have of the cost savings from the proposed transfer of functions to Ofsted and balanced those against the potential disruption to the sector that would be caused by the transfer, I have concluded that the case for change is not compelling. Moreover, the role of my department in relation to independent schools carries confidence, which for a regulator is a precious commodity not to be squandered lightly. I shall therefore bring back amendments on Report to Part 4 to require the Secretary of State for Children, Schools and Families to continue to maintain the register of independent educational institutions. My department will also continue to approve non-maintained special schools under Section 342 of the Education Act 1996. Secondly, I turn to the proposed introduction for independent schools, through Clause 79, of a statutory standard for leadership and management. Having spoken to the Independent Schools Council and the Independent Schools Inspectorate about this, we have agreed that the detailed standards which will be set out in regulations will be modelled on the Independent Schools Inspectorate’s own inspection framework. The ISC has confirmed to me that it would be content with a regulation drafted in that way—and I believe that that meets the second concern. Thirdly, on the repeal of Section 347 of the Education Act 1996, the section provides for independent schools to be approved by the Secretary of State for the placement by local authorities of children with special educational needs. When an independent school is not so approved, the local authority must seek consent from the Secretary of State to place a child with special educational needs in that school. When the legislation was enacted, it was intended as a means of protecting the most vulnerable children with special educational needs. The introduction of the independent school standards in 2003, which all independent schools have to meet, has seen a marked improvement in the standards that apply across the board in the independent school sector. Indeed, the standards against which all independent schools are judged are now at least as robust as those set out for approved schools. The requirement to seek approval, which marks out this separate category of schools, is therefore an unnecessary legal and bureaucratic hurdle, which fulfils no function in providing additional safeguards for children with SEN over and above that provided by Ofsted inspection. Similarly, the requirement for a local authority to seek consent from the Secretary of State to place a child with a statement of SEN in a non-approved independent school is an unnecessary administrative burden. In the past financial year, 772 requests were received for consent from the Secretary of State to place pupils in non-approved independent schools; over 90 per cent of requests for consent were granted. The existing system is overly bureaucratic. We estimate that removing the requirement for authorities to seek consent will save more than £120,000 per year and it will also help parents wishing to appeal to the Special Educational Needs and Disability Tribunal by removing the need for them to obtain enabling consent from my department before their appeal can even be heard by the tribunal, as is the case at the moment. However, I completely understand the concern that, in removing this bureaucratic procedure, we should not introduce new red tape in the provision of information to local authorities and parents about the SEN status of independent schools. I know that has been a concern, but there are a number of ways in which we will ensure that it does not happen. After the repeal of Section 347, local authorities will remain under a duty to inform parents with information about non-maintained special schools. At present, this duty also requires them to inform parents about the SEN suitability of schools approved under Section 347. In future, the duty will extend to all independent schools that cater wholly or mainly for pupils with SEN. That constitutes a duty to inform parents about an additional 343 schools. The list of these schools is maintained centrally and we will ensure that it is made readily and widely available either through the Ofsted or TeacherNet websites. In future, this information will be even more relevant because Ofsted inspections are moving from a six-yearly to a three-yearly cycle in respect of independent schools wholly or mainly for pupils with special educational needs. We are also exploring the possibility of including in the list a summary of the judgments made at each school’s last inspection for ease of reference on the part of parents and local authorities. As a minimum, we will seek to ensure that the list includes a hyperlink to the latest Ofsted or other inspectorate report on a school, although I hope that we can do better than that. On that basis, I am confident that it is in the public interest to remove the requirement for a separate category of independent school and for local authorities to seek consent for a child to be placed in an independent school catering for children with special educational needs. I will also say a word about Clause 91. Clause 91 allows regulations to be made to set out the criteria for the approval and withdrawal of approval from independent inspectorates. We consulted on the criteria to be set under these regulations in January 2008 and the consultation response setting out the action that we propose to take on most criteria has been posted on my department’s website today. The consultation responses were inconclusive, particularly on the issue of public confidence and also raised further questions about the composition of the inspectorial workforce. As a consequence, my right honourable friend the Secretary of State for Children, Schools and Families tabled a Written Ministerial Statement this morning announcing that we will launch a limited supplementary consultation on the criteria to be set under this clause. That also responds in part to concerns that were raised by the Opposition in another place and I welcome any views that noble Lords may have about the proposed criteria. I now turn to government Amendments Nos. 219A, 223A, 223B and 223C, which are part of this group. Amendments Nos. 219A and 223A address concerns raised by the Joint Committee on Human Rights. The committee expressed concern about the apparent lack of safeguards on the face of the Bill in relation to the chief inspector’s powers to enter and inspect independent educational institutions and take copies of records, particularly material subject to legal professional privilege. The amendments that I will move in this group provide protection for documents subject to legal professional privilege, as well as those that fall within the categories of ““excluded material”” and ““special procedure material””. Those latter types of material are recognised elsewhere in legislation as types of material that should be protected. Government Amendments Nos. 223B and 223C to Clause 97 are designed to ensure that the Government’s policy in relation to the setting of inspection fees stated in the impact assessment and the policy statement accompanying our memorandum on delegated powers can be implemented. The clause and amendments will allow inspection fees to be paid annually and in advance of inspections carried out by the chief inspector. I commend these amendments to the Committee and hope that the other changes that I have announced meet the concerns expressed by the Committee about the proper treatment of independent schools in the Bill. In respect of the noble Baroness’s questions about the definition of part-time educational providers—