Academies Bill [HL]

My Lords, Amendment 83 proposes that Part IV of the Education Act 1996 applies to academies as it does to maintained schools. Part IV contains what is commonly known as the SEN framework, which makes provision for pupils with special educational needs and covers the assessment and statementing process, admissions, the delivery of services, the need to have regard to the SEN code of practice, and so on. The exclusion and disciplining of pupils with SEN are dealt with elsewhere in educational legislation and are the subject of later amendments. On Monday, we debated amendments that sought to ensure that academies’ funding agreements contained all the requirements that Part IV of the Education Act 1996 lays on maintained schools in relation to pupils with SEN. The Minister very helpfully agreed to consider how best to achieve parity between academies and maintained schools, and to come back with proposals on Report. I must apologise to him and to the Committee that I could not stay for his reply on Monday on account of needing to attend a function elsewhere, but I read his reply in Hansard and found it most helpful. I thank him and ask him to accept that no discourtesy was intended. We discussed those amendments then simply because they came up earlier in the Bill, but their scope was somewhat narrower than that of Amendment 83. They provided simply that funding agreements should incorporate Part IV of the Education Act 1996. Amendment 83 would provide that the requirements of Part IV are applied to academies as a matter of law and not simply as part of the contractual arrangement between the academy and the Secretary of State by which academies are governed. The SEN framework in Part IV of the Education Act 1996 was developed with cross-party consensus. It makes provision for meeting the needs and providing support for children with SEN and disabilities, and gives parents a legal right to ensure that their children’s SEN are met. We know that the Minister is committed to ensuring that academies are subject to the full range of responsibilities in relation to children with SEN that maintained schools are under. But he believes that this can be brought about by contractual agreement. A better and altogether simpler way would be to provide that the requirements of Part IV are applied to academies as a matter of course, as a matter of law rather than of contract. I suggest that for five reasons. First, it would ensure consistency across all academies. Secondly, it could ensure more comprehensive coverage of the rights and duties in Part IV. The Minister will say that he can ensure these first two things by seeing to it that the requisite provision is written into each and every funding agreement. Indeed, we know that there is a model funding agreement containing many of the relevant provisions, which has been operating since 2007, including in particular the need to have regard to the SEN code of practice. However, the model funding agreement does not contain all the provisions it needs to. Notably absent are the parent’s right to have the needs of a child with SEN met; the duty to inform parents if the school believes a child has special educational needs, such as is laid on maintained schools by Section 317A of the Education Act 1996; and a school’s duty to admit a pupil with a statement where the parents and the local authority wish this. There are also provisions in other legislation applying to maintained schools which need to apply to academies, but which do not under the funding agreement system. These include the requirement that all SEN co-ordinators are qualified teachers; that maintained schools are required to participate in behaviour and attendance partnerships which aim to reduce the number of children with SEN who are permanently excluded; and the right of appeal to the Local Government Ombudsman should parents believe that a child’s needs are not being met. From the point of view of comprehensive coverage, there are problems. My third reason for preferring this approach is that it is more transparent. It is far easier to ascertain the legal position of academies from an Act of Parliament than from 1,000 funding agreements. Sometimes one might be tempted to doubt that, but in general it is the case. Fourthly, there are real question marks over the accountability of academies and the enforceability in respect of academies of the rights and duties in Part IV. There is a lack of accountability in the arrangements made with existing academies. Section 324 of the Education Act 1996 gives legal responsibility to local authorities for arranging the provision of SEN as set out in a child’s statement. There is room for real concern that a local authority’s ability to arrange this provision will be hampered by the independent status of academies and the absence of levers that are available within the maintained sector. Reliance on the funding agreement has the potential to undermine the SEN framework and, as academies become more numerous, there could be a gradual erosion of Part IV of the Education Act 1996. As regards parents, the system of funding agreements can be somewhat inaccessible and unsuited to obtaining a remedy. The legal framework for SEN gives parents an individual right to see that their child’s SEN are met. Academies are independent schools funded directly by the Secretary of State and are accountable to him mainly through the funding agreement rather than the Education Act. The Special Educational Consortium has serious concerns that even where the statements contained in a funding agreement are clear, they do not offer parents the same right to redress and protection as the legislation. It seems clear that parents will be unable to enforce their rights through complaints to the local education authority, but it would appear that they do not have a legal remedy either because they are not parties to the contract which governs the academy. There are also a number of complex questions to do with when complaints can be made to the Local Government Ombudsman, whether academies can be judicially reviewed by parents, and whether the Secretary of State will have the capacity to ensure that many hundreds of academies are following the duties outlined in their funding agreements. This last concern underlay the comments of two parents quoted yesterday in the Guardian. One said: ""At the moment, we also have a local process we can use if provision is not appropriate. It may not be perfect, but it is a local process and the alternative seems to be that, without local authority involvement, we would have to go down to London to make our case and we wouldn’t be able to go to the local government ombudsman either"." The other parent said: ""I want to be able to enforce my rights locally. I find the idea that we should have to take our concerns to the secretary of state an utterly ridiculous concept"." That brings me to my final reason for preferring what I might call the legislative obligation approach. The funding agreements are insufficiently robust for delivering the obligations we all want to see academies having. I have been made aware of cases before the SEN and disability tribunal which show that academies are simply driving a coach and horses through their funding agreement obligations when they have a mind to. In one case, despite the fact that the wording in its funding agreement came from the latest model, the academy was applying its own entirely different criteria for admitting children with statements, including setting a quota of one per class and picking what types of special educational needs it catered for. It even tried to argue that the SEN admissions criteria in its funding agreement did not apply at all, and it was running together its ordinary admissions criteria with the entirely different SEN provisions. In practice, the academy was taking no notice of its funding agreement on SEN admissions. The same thing happened in another case. The criteria that the academy actually applied bore no resemblance to what was in its funding agreement. In both cases the academies, through their most senior people, did not appear to regard the funding agreement as binding on them at all. They seemed to consider themselves able to set their own rules. My informant, the barrister who represented the parents in both these cases, adds, "Also bear in mind that, as you will know, it is rare to get legal representation at an SEN and disability tribunal. Had I not appeared for the parents in these cases, I very much doubt they would have got in. I suspect that the academies in question were simply carrying on as before". He concluded by saying, "If you want examples of why the provisions on SEN need to be in legislation, then here they are". Of course, people can break the law as well as breach a funding agreement, but it is my contention that the law provides not only a more generally applicable approach but is also more transparent and enforceable, and creates obligations that are more clear cut and incontrovertible. When he reflects on how best to achieve parity between academies and maintained schools in this area, the Minister may conclude that the best as well as the simplest course will be to take the legislative route.