The Education Bill – An Overview

March 3, 2011

The Education Bill seeks to implement the legislative proposals in the Schools White Paper and is wide-ranging. Anna Sweeney and Sarah Morley report on the main issues for local authorities, schools and further education institutions.

The Education Bill was presented in the House of Commons on 26 January 2011 and had its second reading on 8 February. It is now in Committee stage and anyone interested in influencing the content of the Bill can submit written evidence to the Public Bill Committee by 5 April 2011.

The Bill seeks to implement the legislative proposals in the Schools White Paper, The Importance of Teaching, which was published in late November. It is a wide-ranging Bill in ten parts. This legal briefing follows the structure of the Bill and reports on what we see as the main issues for local authorities, schools and further education institutions. Most of the Bill applies to England only and there is a useful table at the end of the Explanatory Notes to the Bill which sets out the territorial application of each clause.

Part 1 – Early Years Provision

All three and four year olds are currently entitled to 15 hours a week of free nursery education. The Labour government had been trialling free nursery education for disadvantaged two year olds since 2008. The Bill continues this policy. Clause 1(2) of the Bill would require local authorities to provide early years care to children who are under compulsory school age and of a description provided in regulations.

So that local authorities can check whether a family's income entitles them to free early years provision, the Bill introduces a new information sharing duty allowing HMRC to supply information relating to tax credits and for the Department for Work and Pensions to supply social security information to the Education Secretary, who would then pass it on to local authorities or a contractor. This mirrors the provision in section 110 of the Education Act 2005 which allows data to be shared for the purposes of determining eligibility for free school meals and milk.

See also Part 5 below which will allow nursery schools and primary schools with nursery classes to charge for early years provision above the free entitlement if they wish. Charging the more affluent may help subsidise free nursery provision to otherwise disadvantaged children under three years of age.

Part 2 – Discipline

Power to search for and seize prohibited items

The Schools White Paper proposed granting teachers more powers to search pupils, issue detentions, use reasonable force where necessary and confiscate any unsuitable items; and the Bill implements these proposals. Clause 2 extends the definition of "unsuitable items" for which teachers have the power to search pupils or their possessions to include:

Any article that the member of staff reasonably suspects has been, or is likely to be, used to commit an offence or to cause personal injury to, or damage to the property of, any person
Any item which the school rules identify as a prohibited item (although in this case staff cannot use reasonable force to search pupils).

Where the prohibited item that has been seized is an electronic device, the files on it can be examined and even erased if the person who has seized the device thinks there is a good reason to do so.

Search powers in general are strengthened to recognise that there is not always time to get a member of staff of the same sex as the pupil to carry out the search, or to fetch another staff member to be present whilst the search is being carried out.

Similar powers of search are given to further education institutions by clause 3, although they cannot search for items banned under school rules.

Detentions

The requirement to give 24 hours' written notice of any detention out of school hours will be abolished under clause 5 of the Bill. There is concern that this will have an adverse impact on children who are carers for someone at home, although the Government stresses that schools can use their discretion and still give notice if they wish.

Exclusions

Clause 4 of the Bill changes the exclusion process for England (the existing appeals process will continue to apply to Wales) and creates a new review panel. This panel may uphold the school's or pupil referral unit (PRU)'s decision to exclude a pupil, or recommend that they reconsider their decision. The review panel cannot however order reinstatement of the excluded pupil, unlike the current appeals panel. What it can do, though, is effectively impose a penalty on the school where it has directed the school to reconsider its decision and the school decides to go ahead with the exclusion. The review panel in this case can deduct money from the school's share of the budget to recognise the costs of making alternative provision for the excluded child.

Part 3 – School workforce

Various quangos will be abolished and the functions of the first two transferred to the Education Secretary:

The General Teaching Council for England
The Training and Development Agency for Schools
The School Support Staff Negotiating Body.

The Schools White Paper said the Government would legislate to give anonymity to teachers accused by pupils and clause 13 of the Bill implements this policy, applying reporting restrictions about alleged misconduct by teachers (including supply and peripatetic teachers). Teachers have long campaigned for this.

Part 4 – Qualifications and the curriculum

The Qualifications and Curriculum Development Agency will be abolished by clauses 23 and 24 of the Bill. This is not a surprise as the Education Secretary announced this in May 2010.

Clause 27 requires maintained schools and PRUs to secure independent careers guidance for pupils 14 and over, and local authorities will no longer be required to provide the Connexions service.

Part 5 – Education institutions: other provisions

Don't be fooled by the rather anodyne title as this part is where the real "meat" of the Bill lies for local authorities, schools and further education institutions.

Abolition of duties

The Bill will abolish various duties that schools currently have to co-operate with local authorities. The aim is to reduce the bureaucratic burden on schools but children's organisations have voiced concern that this lack of joined-up working will impact on vulnerable children. It also appears to be gradually taking away the influence that local authorities have over the schools in their area – a foretaste of things to come? The duties to be abolished are:

The duty on schools and FE institutions to co-operate with local authorities in making arrangements to improve children's well-being and be represented on the local Children's Trust Board (clause 30)
The duty on schools to have regard to their local children and young people's plan
The duty on maintained schools to prepare and publish a school profile
The duty on local authorities to appoint a school improvement partner for each school they maintain.

Admissions

The Bill removes the requirement on local authorities to establish an Admission Forum for their area and restricts the School Adjudicator's remit to direct complaints about an admission policy. Local authorities will also no longer be required to provide reports to the School Adjudicator on admissions to schools in their area. See also under Part 6 – Academies below.

School meals

Currently, local authorities must charge each person the same price for the same quantity of the same item. Clause 35 of the Bill amends this so that although local authorities cannot charge more than the cost of the meal, milk or other refreshments they provide, they can have more flexibility about what they charge. This will enable them, for example, to offer a lower charge to reception children, to encourage take up of school meals, or to offer family discounts. This will not affect the provision of free school meals and milk to eligible pupils.

New schools

As promised in the Schools White Paper, clause 36 and Schedule 10 of the Bill introduces a presumption that any new school established in an area will be an Academy. Any Academy proposals entered into a competition under section 7 of the Education and Inspections Act 2006 will no longer be submitted to local authorities for approval but will be referred directly to the Education Secretary for him to decide whether he wants to enter into an Academy arrangement with the proposer. A local authority can no longer enter its own proposals for a new foundation or community school in a section 7 competition.

Governors

Clause 37 reduces the number of categories of governor required to sit on an English school's governing body, so that it will only be parent governors, the head teacher and such other persons as are prescribed. There is concern that removing the requirement to have staff and local authority elected governors on their boards will lead to schools becoming less democratically accountable. It will also result in smaller governing bodies. The Department for Education has evidence that flexibility with smaller, more focused governing bodies is effective in promoting good governance and rapid improvement in schools. This could make volunteering as a school governor a more onerous and time consuming obligation.

Inspections

Clauses 39 and 41 will remove "outstanding" schools and FE institutions respectively from regular Ofsted inspections. Clause 40 simplifies the areas that schools inspectors must report on: pupils' achievement; quality of teaching; quality of leadership and management; and pupils' behaviour and safety.

Powers of Secretary of State to close schools

Clause 43 will extend the Education Secretary's powers to order the closure of a school. At the moment, he can only close a school which requires special measures, but the Bill will extend this power of closure to a school which has failed to comply with a performance standards or safety warning notice, or a school identified as requiring significant improvement and issued with a notice to improve.

Clause 43(3) strengthens the Secretary of State's powers over local authorities so that he can force a local authority to give a performance standards and safety warning notice in specified terms. Failure to comply with such a warning notice results in the Secretary of State being able to close the school.

Financial schemes

Clause 45 gives the Education Secretary more power over local authority school financial schemes, enabling him to revise them by direction (provided he consults the local authority first). The Government's long term aspiration is to move to a national funding formula as Academy status for schools becomes the norm. Clause 45 would therefore enable the Education Secretary to implement national policies on school financial management such as ensuring schools use national framework contracts for procurement, leading to economies of scale.

Charging for nursery education

Clause 47 allows maintained nursery schools and primary schools with nursery provision to charge for early years provision beyond the current 15 hours' free entitlement. The NUT has warned that such charge would widen the gap between schools serving affluent areas where parents can afford to pay and the rest and that the charge may well lead to closures where provision is most needed.

Part 6 – Academies

The Bill makes various amendments to the Academies Act 2010 that appear to be more a tidying-up of loose ends than major changes. Secondary schools that become Academies will not be required to have a specialism. As promised in the Schools White Paper, FE institutions and PRUs will be able to become Academies. The Education Secretary has said that he would like to see voluntary groups and existing Academies take over local authority controlled PRUs as he considers them to be "the weak link in the chain, without an accountable person responsible for making sure these children progress". It is intended to open up the market for alternative provision with free schools run by voluntary and private sector organisations also offering alternative provision. These free schools will become Academies following Secretary of State approval of each free school proposal.

There is an additional duty to consult if the Education Secretary wants to force a foundation or voluntary school with a foundation that is "eligible for intervention" to become an Academy under section 4(1) (b) Academies Act 2010. Schedule 13 adds detailed provisions dealing with land transfers which we have previously identified as an issue. Clause 60 allows School Adjudicators to consider and determine eligible objections or referrals relating to the admissions arrangements of Academies, as they do in respect of maintained schools.

Part 7 – Post-16 Education and training

Further Education Institutions

The main provisions dealing with further education institutions are actually in Part 5: clause 48 and Schedule 11. These make amendments to the duties on FE institutions with the aim of reducing Government intervention and bureaucracy and to give colleges greater autonomy. FE institutions will no longer have to gain consent from the local authority or relevant body before exercising their powers to borrow money. They will no longer have a specific duty to promote the economic and social wellbeing of their local area when carrying out their functions. Any person or body will be able to apply directly to the Secretary of State to establish a sixth form college corporation.

Abolition of YPLA

Part 7 of the Bill abolishes the Young People's Learning Agency (YPLA), the successor to the Learning and Skills Council. The Government stated in the Schools White Paper that it intends to replace the YPLA with a new body, the Education Funding Agency, which will be an executive agency of the Department for Education.

Apprenticeships

There is a duty in the Apprenticeships, Skills, Children and Learning Act 2009 to secure sufficient number of apprenticeship places for all suitably qualified young people who want one. This duty has not yet come into force. Clause 65 of the Bill removes this duty and in its place introduces a new duty to prioritise funding for young people who have already secured an apprenticeship place. This will come into force by 2013 and apply to England only.

Part 8 – Student Finance

Clause 70 gives the Secretary of State wider power to set interest rates on student loans, enabling him to set higher interest rates, reflecting commercial levels, on higher earning graduates, whilst lower earners could have a lower, subsidised interest rate on their loan. The general reaction is that this is a fairer and more progressive system, but there has been criticism about the way that these proposals have been "sneaked" into a Bill which is largely a schools bill.

Clause 71 caps the fees that can be charged for part-time courses, to ensure that part-time students are not put at a disadvantage compared with full-time students, whose fees are already capped.

Comment

The Bill is wide-ranging and impacts on schools, further education institutions and most of all on local authorities. The overall impression gained from reading the Bill is a shift of power away from local authorities to greater autonomy for schools and with central control from the Department for Education. This is a move which sits uneasily with the Government's stated commitment to localism. The intention is perhaps to give each school more autonomy, but schools cannot operate in a vacuum and will no doubt turn to the Department for Education for guidance, leading to a centralisation of policy.

Sarah Morley is an Associate and Anna Sweeney is an Associate and Professional Support Lawyer in the Public Sector & Projects team at Walker Morris. Both regularly contribute articles and updates to reach…®, the firm's free knowledge database and alerter service.