The Independent Schools Council has raised concern about the clause, which abolishes the concept of approved independent schools under section 347 of the Education Act 1996. The ISC points out that approved status
“provides parents with the assurance that a section-347 school can meet the needs for which it is approved and in which it specialises.”
In the July 2007 consultation document, the Government say:
“Section 347 of the 1996 Education Act created two categories of independent schools, approved and non-approved schools. Approved schools cater wholly or mainly for pupils with SEN, and are required to meet additional standards. For this reason, local authorities are able to place pupils in these schools without seeking consent from the Secretary of State. The standards were originally needed because independent school standards were not in the past set out in a way that was helpful for special schools.”
They go on to say:
“Since the Education Act 2002, higher standards have been set for the independent sector as a whole ... We believe these new standards, together with an improved inspection framework ... remove the need for a separate category of approved independent schools.”
It will then be for the local authorities to assure themselves of the quality of independent special schools that they use to provide education for children with special needs.
In its briefing to the Committee, the ISC points out:
“We are concerned that most local authorities will not have sufficient resources to enable them to take on the responsibility, effectively, for assessing and monitoring the school as well as the individual placement. At the moment, if a school is approved, the local authority need not concern itself with...the organisation or standards at the school: it simply needs to consider whether it can meet the child’s needs...Should local authorities have the resources to carry out this new responsibility, they may seek to impose further burdens on schools”— that is, of course, if they have the capacity to carry out their individual assessments. It goes on:
“If local authorities believe that they have additional duties to vet such schools, there is a danger that they will impose additional checks (quasi-inspections) and requirements on these schools which could adversely affect their independence and increase the costs”.
The ISC also points out in its written submission that
“none of the schools approved under” section 347 which are part of the ISC’s membership,
“or, indeed, any other s. 347 schools” which are not ISC members
“has requested any change to the existing system of approving schools or individual placements...ISC would therefore question the need to make any changes to a system which is functioning well—our schools believe that the Department’s team dealing with s 347 approvals provides an excellent service—and has not experienced any significant problems.”
That is praise indeed, again, for the Minister’s Department. Paragraph 59 of the written submission says:
“Schools see their s 347 approval as a quality standard or kite mark which assures everyone”.
“this approval mechanism, takes away this quality assurance”.
The ISC makes clear that the approval regime was introduced in the Education Act 1981, in response to recommendations in the Warnock report, to which my hon. Friend alluded. That report was critical of the unregulated nature of local authority placements in independent schools. The ISC goes on:
“There is, therefore, a serious concern that by removing the s 347 approval mechanism, there may be a return to the previous system, which was found to be in need of reform.”
There is a wider debate to be had about the tendency of many local authorities, for reasons of cost and sometimes of ideology, not to place children with special needs in special schools, or at least to put barriers in the way and make it difficult for all but the most persistent parents to obtain an assessment or statement of special educational need and to get the placement that they seek. Therefore,
“In one respect, ISC recognises that the proposals may enable local authorities to place children with statements of SEN in a wider range of independent schools...However ISC would...fear that...local authorities in practice would take the opportunity presented to reduce the number of placements in the independent sector...or there could be an increase in the number of students placed inappropriately at schools which...may not offer the safeguards of specialism and quality present under the current s 347 approval mechanism.”
That is a real danger, given that there is already a tendency in local authorities to resist sending or allowing parents to send their children to special schools, whether in the independent or the maintained sector.
The ISC makes the further important point that the special educational needs and disability tribunal
“can only name the school if it is approved or if the Secretary of State gives consent for the individual child to attend...If, in the future, the local authority will be solely responsible for deciding whether a school is suitable for a particular child, we would argue that this creates a significant conflict of interest and places in the Tribunal in an impossible position. It would seem inequitable for an authority to, in effect, defeat an appeal against its decision by saying that it does not consider the parent’s preferred school as suitable and that the Tribunal, therefore, could not place a child there in any event. On the other hand, the tribunal is unlikely to have sufficient evidence to allow it to assess whether the local authority’s judgment about the school is sound”.
There are multiple concerns expressed by the ISC which I have had the pleasure of conveying to the Committee. The Minister needs to think again about whether something that is working well should be removed and abolished for whatever reasons he has for making this proposal in the first place. I look forward to hearing his response to the ISC’s genuine concerns.
I am hugely grateful to the hon. Gentleman for his praise of my Department’s officials, who indeed do a fine job. The proposals to transfer this function are no reflection on their professionalism or capability.
The requirement for independent schools to meet additional conditions of approval when local authorities are considering placing children with statements of special educational needs was carried forward in the Education Act 1996. At the time, that was intended as a means of protecting the most vulnerable children with SEN. The introduction of the independent schools 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 schools sector. Indeed, the standards against which all independent schools are judged—this is the significant issue—are now higher than those set out for approved schools. The requirement to seek approval which marks out the separate category of school is therefore simply legal and bureaucratic. It fulfils no function whatsoever in providing additional safeguards for children with special educational needs.
In respect of burdens on local authorities, under current legislation, a local authority has to decide whether an independent school is a suitable placement. The fact that an independent school is approved under section 347 does not reduce an authority’s work in determining whether it is a suitable placement for that individual. That duty on local authorities will not change with the proposed changes in the Bill. They will still be able to access lists of independent schools that are specially organised for pupils with SEN, describing what type of SEN the schools cater for. They will then have to determine whether a school can meet the individual needs of the child.
I accept that point, but assessing whether the school is a suitable institution for the child to attend is different from having to assess the quality of a school. That places a whole new burden on local authorities. They do not just have to ask whether a particular type of school is right for a child with these particular special educational needs. They now have an additional burden placed upon them to assess whether that school is a good-quality school per se.
Perhaps the hon. Gentleman, who I know is assiduous, missed my point that all independent schools will have met the standard for all independent schools, which is higher than that required for an approved school. The local authority therefore does not need to concern itself about the standard but simply about whether the school is appropriate for the individual child. The proposed changes will, however, remove the need for a local authority to seek consent from the Secretary of State to place a child with special educational needs in an independent school. Under current legislation, around 700 requests are received from local authorities seeking consent from the Secretary of State for placements. The changes proposed in clause 129 will remove this burden on local authorities and we estimate that the documentation to support a request for consent takes 350 days a year of local authorities’ SEN officers’ time. This equates to a monetary saving to local authorities of approximately £120,000 per year.
The requirement for a local education authority to seek consent from the Secretary of State to place a child with a statement of special educational needs in an non-approved independent school is an unnecessary administrative burden.
There are safeguards in place for parents of children with statements of special educational needs. Where there are disagreements between parents and local authorities about provision and placements of children with SEN, parents have the right of appeal to the special educational needs and disability tribunal. Decisions of the tribunal are binding on both parties. The tribunal would still need to be satisfied that an independent school was appropriate for the child. SENDIST already considers that and does not rely on the mere fact of approval, for all the reasons I set out. The tribunal stands in the shoes—to adopt a colloquialism—of the local authority for that purpose.
I am confident that the existing statutory duties of local education authorities for children with SEN, together with the strengthened guidance and improved standards for the independent sector as a whole, 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. I hope that the Committee supports the clause.
It is my job to do what I can from the Chair to protect the rights of all Members. I notice that there are still five groups of Government amendments on the Order Paper for discussion. These will be put to a vote, whether or not we have a debate on them. There is also one further group of Conservative amendments, Liberal Democrat amendments and four groupings of Liberal Democrat new clauses. We have just over half an hour to go, so if colleagues want to ensure that all Members have the opportunity to put proposals, we must make progress as quickly as we can.
On a point of order, Mr. Bailey, I seek your guidance on clause 133. Some weeks ago, I tabled amendment No. 161, which would omit clause 133. If my memory serves me correctly, it originally turned up as an amendment on the selection list. It is not there now so I seek your guidance on how you plan to deal with that.
Given the confusion this morning, it might be convenient for Members on both sides of the Committee if I say that my reading of amendment No. 186, which is out of order, is that it is the Government’s intention to oppose the motion that clause 132 stand part of the Bill because they intend, at a later point, to move that a replacement clause, new clause 6, is opposed.