2005-06
 House of Commons |
Session
2005-06 Publications on the internet Edication and Skills Committee Publications |
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Education and Skills - Third Report Here you can
browse the report together with the
Proceedings of the Committee. The published report
was ordered by the House of
Commons to be printed 21 June 2006.
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Special Educational Needs |
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ACADEMIES 196. There are
particular issues of
admissions and parental choice for children with SEN in relation to
Academies. 197. Firstly, the
Committee has received
reports throughout the inquiry of fears that academies are failing to
seek the
right approach towards children with SEN—and possibly even turning away
children with SEN to improve their results. Steve Haines, Policy
manager for
Education and Employment at the Disability Rights Commission (DRC),
told this
Committee that: "[...]
what seems to be coming through what I am hearing through various
networks that
we are in contact with is that there is that lack of onus on children
with
special educational needs."
198. Children Now reported earlier
this year [Children
Now, David Singleton,
Analysis: Special educational needs - Fresh controversy over academies,
22
March 2006] "the percentage of pupils with special educational needs has dropped dramatically at two of the most successful academies, when compared with the 'failing' schools they replaced. The Walsall Academy registers the biggest drop with the total percentage of children with special educational needs plummeting from 41% to 8%. The City Academy Bristol has seen the percentage of children with special educational needs fall from 46% to 28%." [Children Now obtained figures for 14 academies and their predecessor schools. They show that the total percentage of children with special educational needs has fallen at seven of the academies. The percentage of children with statements has fallen at eight of the academies]. 199. The Minister, in
contrast, gave us
other statistics suggesting that, overall, academies were taking both a
greater
proportion and number of children with SEN than their predecessor
schools.
Figures provided for 2005 show that the number of children with
statements had
increased from 411 to 508 (a static proportion of 3.3% of pupils) from
the
predecessor schools to the new academies, and that the number of
children with
SEN but without statements had increased from 3,231 to 4,184 (an
increase from
26.5% to 27.5%). 200. Evidence
presented to us has been
inconclusive, but if it is the case that some Academies are turning
away
children with SEN, this is of great concern. 201. Secondly, there
is a legal issue with
regard to the naming of a school in a statement. It is the case for all
state
schools that if a school is named by a local authority on a statement,
that
school is obliged to take that child. Parents have the right to state a
preference of school during the process. 202. When we asked the
Minister if parents
of children with special educational needs can state a preference for
an
academy, we were very clearly told by Rt Hon Jacqui Smith MP, the then
Minister
of State for Schools and 14-19 Learners, that "they can"
"yes" [evidence taken from
Ministers by Education and
Skills Committee 19 December 2005].
However, the DfES letter of 15 November clearly says "since Academies
are
independent schools the admission arrangements are different [DfES Letter to CEOs / Directors of
Children's Services, 15 November
2005, regarding Special Educational Needs].
Parents do not have a statutory right to express a preference for an
Academy,
though they can make representations as to the particular Academy they
would
like their child to attend." It then goes on to make it clear that if
the
Academy does not consent, the authority should not name it in the
statement. 203. Although they
were partly clarified in
reply to Q663, other discrepancies were not covered: Annex 1 of the SEN
dispute
pack document makes clear that even if a parent appeals to the SEN
Tribunal
about an academy's refusal to accept their child and wins the appeal,
the
Academy is not required as a matter of law to admit the child —though
it is
"highly likely" that the Secretary of State would direct it to do so.
The key point is that parents' rights are dramatically diminished. They
must
rely on the Secretary of State intervening rather than the protection
afforded
by statutory rights that arise from education legislation which applies
to
maintained schools but not to academies. Lord Adonis said that: "the
legal basis on which they are governed means that they are legally
independent
schools governed by funding agreements with the Secretary of State." When asked why it
would not be possible to
have a different kind of basis on which there is a funding agreement
but still
have a universal right for a child with special educational needs to go
to any
school which the statement recommends, the Minister agreed this would
be
possible. Lord Adonis said: "You
could have, is the answer to your question. Of course you could do
that." 204. Lord Adonis was
not convinced, however,
that there was a legitimate concern to justify such a change: "[...]
my answer to that is that the Government is not persuaded that we
should
propose that change because we do not see there being a legitimate
concern in
this area." 205. When evidence was
put to Lord Adonis
regarding the reduction in children with SEN at some academies he said
that it
was the average levels that mattered: "I
do not come before you to account for each individual school and its
policy, I
am sure that there are good reasons in those individual ones of why
that may
have happened, but if you look at the average, which is what should
concern us,
the average is very clear. The numbers are higher and the proportions
are
higher." 206. Average figures
can disguise what is
happening at an individual school level. In light of the evidence
presented to
this Committee, we believe that the risk of discrimination to children
with SEN
is not worth taking for the sake of maintaining the legal independence
of
Academies in this area. As Steve Haines, DRC, identified in oral
evidence: "My concerns are really focused on where
funding agreements
mean that academies are not as responsible to that legislation [which
promotes
equality of outcome] as perhaps they might be." 207. To guard
against the possibility
that academies could discriminate against children with SEN this
Committee
recommends that the Government take the relatively simple step of
changing the
funding agreement so as to put academies on the same legal footing as
all other
schools with regard to children with SEN. |
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Academies
are governed by nothing more than "funding agreements", between Central
Government and themselves. They seem to be immune from Education law
that applies to all other public sector schools, from the 1944
Education Act onwards. They are literally a law unto themselves. The 1996 Education Act (Section 312(2)) says that a child has a special educational need if she or he has significantly greater difficulty in learning than the majority of children of the same age, or a disability which makes it difficult to take advantage of normal school facilities.
When the committee asked the Rt. Hon. Jacqui Smith M.P., the then Minister of State for Schools and 14-19 Learners, now Home Secretary, if parents of children with special educational needs can state a preference for an academy, she replied "they can" "yes". So the Minister of State clearly states that Academies are covered by statementing legislation. But the DfES disagrees: "since Academies are independent schools the admission arrangements are different. Parents do not have a statutory right to express a preference for an Academy, though they can make representations as to the particular Academy they would like their child to attend." The Department further instructs that the LA should not name an Academy in a statement if the Academy does not consent. It then goes on to make it clear that if the Academy does not consent, the authority should not name it in the statement. Annex 1 of the SEN dispute pack states: "The Academy shall have regard to the Special Educational Needs Code of Practice (2001) and any guidance issued by the Secretary of State relating to sections 316 and 316A of the Education Act 1996." Have regard to is totally different from is bound by. So, Academies are above the law. Governing Bodies of maintained schools have statutory responsibilities for pupils with Special Educational Needs. The governing body must do its best to ensure that the school makes the necessary provision for every pupil with SEN. As part of its policy for SEN the governing body should let parents know how they can raise concerns about provision for children with SEN and how their concerns will be investigated. They also have responsibility, in reviewing the schools' budget, to consider the employment of SEN support staff and monitor the levels of resources spent on supporting pupils with SEN. The governing body thereby assists in the development and monitoring of the school’s policy and strategy for SEN. The governors of an Academy, however, "shall use their best endeavours, in exercising their functions in relation to the school, to secure that, if any registered pupil has special educational needs, the special educational provision which the pupil’s learning difficulty calls for is made". Where a child who has special educational needs is being educated in the Academy, those concerned with making special educational provision for the child shall secure, so far as is reasonably practicable and is compatible with:
Where
a local
education authority proposes to name the Academy in a statement SEN
made in accordance
with section 324 of the Education Act 1996, the Academy shall consent
to being
named, except
where admitting the child would be incompatible with the
provision of efficient education for other children; and where no
reasonable
steps may be made to secure compatibility. In
deciding whether a
child’s inclusion would be incompatible with the efficient education of
other
children, the Academy only has to "have
regard" to the relevant guidance issued by the
Secretary of State to maintained schools. So, maintained
schools are bound by statutory responsibilities and are bound by the
guidance issued by the Secretary of State. Academies shall only "use their best endevours" only have
to go "as far as is reasonably
practicable", don't have to admit a child if the admission would
be "incompatible
with the
provision of efficient education for other children and
where no reasonable
steps may be made to secure compatibility". Who
defines "best", "reasonable", "incompatible" and "efficient"? Has it happened? Don't think so. |
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Open meetings of HAVOC
are usually held on Wednesdays at 5.00 p.m. at Live & Learn Land, 187-189 Hamil Road, Burslem. Anyone and everyone
is welcome.
Please phone 01782 767529 to confirm meetings. |
