Archived decisions

Contact: Roger Mead, ACEO Resources and Planning Branch (01962 847991)

DfES Consultation Papers:

· "The way forward - a modernised framework for school governance"

· "Better beginnings: improving quality and increasing provision in early years education and child care"

· "School Admissions"

· "Exclusion Appeal Panels"

· "16-19 Organisation and Inspection"

1. Summary

1.1 This report sets out the arrangements to enable the county council to respond formally after consulting as many partners as possible and highlights the main issues in the consultation papers issued alongside the White Paper.

1.2 The first four papers were issued with the White Paper. The fifth was issued on 21 September, and the DfES acknowledges that this reduces the consultation to six weeks. The deadline for a response is 7 November 2001.

2. The proposed arrangements

2.1 This report identifies those main issues identified at an initial consideration.

2.2 The draft response to the five consultation papers will be sent to members by no later than 26 October to enable comment/additions to be included prior to the final draft being presented to the Cabinet Executive Member on 2 November 2001.

2.3 The comments in this report vary in length and nature because of the timing and format of the various papers.

3. The school governance consultation paper

3.1 Appendix 1 summarises the document and includes officer comment on the proposals.

4. The early years education and child care consultation paper

4.1 Appendix 2 sets out the document. Officer comments have been added in bold type as the proposed response to the specific questions.

5. The school admissions consultation paper

5.1 Appendix 3 lists the main changes proposed.

6. The exclusion appeal panels consultation paper

6.1 Appendix 4 sets out the full consultation paper.

7. 16-19 Organisation and Inspection consultation paper

7.1 Appendix 5 summaries the 15 page document issued at the end of September and highlights some key issues.

Recommendation

1 That the County Education Officer drafts a response to the White Paper, in the light of members' comments.

2 That members receive for individual comment a draft response to be presented to the Cabinet Executive Member.

Section 100 D - Local Government Act 1972 - background papers

The following documents disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to material extent in the preparation of this report.

NB. the list excludes:

1 Published works.

2 Documents which disclose exempt or confidential information as defined in the Act.

TITLE FILE

The Way Forward - A modernised framework for School Governance Governor Services

DfES Consultation Paper

Appendix 1

The Way Forward - A Modernised Framework for School Governance

Summary

The White Paper proposes to repeal many of the provisions dealing with school governance in the School Standards and Framework Act. The intention is to replace them in primary legislation with a general enabling power for the Secretary of State to make Regulations and issue statutory and other guidance making provisions for the governance of schools. The claim is that the proposals will:

_ Give governors greater scope to choose arrangements that suit their school

_ Free governors from activities incidental to their primary strategic role

_ Create a legislative framework for school governance that can be more easily adapted to changing circumstances

Particular Proposals

Governing Body Constitutions. Currently choices on the size and membership of governing bodies are made by individual governing bodies from a range of options constrained by the phase, type and size of school. The County Council checks and "approves" the resulting Instrument of Government. In the future it is proposed that choices will be made by governing bodies from a range of options irrespective of phase or type of school resulting in governing bodies of any size between 9 and 20. Voluntary Aided schools will maintain the majority of Foundation governors appointed by the Diocese. Most other current stakeholder groups will remain represented although proportions will change. The continued representation of Minor Local Authorities will be a matter for local decision with provisions made for them to be appointed as part of the LEA governor contingent or by governing bodies within the community group. Current teaching and non-teaching staff groups become a single staff group which will also include the headteacher. The County Council will continue to approve the Instrument of Government for each school.

Terms of office currently set as 4 years will also be a matter for governing bodies to determine and in future it is suggested may be "up to 4 years".

Grouping. Where they wish to do so schools will be able "to federate" under a single governing body. Respondents are asked whether they would wish to put an upper limit on the number of schools that could be under the control of a single governing body. Choices are "less than 5", "5-7", "8-10" and "over 10".

Powers to replace governing bodies in failing schools with "Interim Executive Boards" (who could be paid) will be introduced. `Proposals to do so will be made by the LEA and require the Secretary of State's approval and are expected to be used only in extreme cases when other measures have failed to secure improvement.

Comment

Parent governorships will increase from about a quarter currently to "at least a third". Parent governors make a valuable contribution in Hampshire schools but in some of our more socially disadvantaged areas prove extremely difficult to recruit.

Minor Authority governorships will disappear as a distinct category. Whether or not they are assimilated into LEA or community categories will be for local decisions. Similar attempts to end MA representations were made prior to the 1999 reconstitution and met with vociferous opposition by Parish, Town and District Councils in Hampshire leading to late amendments to the Bill going through Parliament.

Variable "terms of office" seem to add to the administrative complexities to little or no purpose given that any governor can currently resign at any time during their term of office. The effect of shorter terms of office on recruitment and vacancy levels are unknown.

Grouping. The County Council has been committed to every school having its own governing body for many years. When grouping was abolished in 1999 the remaining few Hampshire schools operating as groups were exclusively of Infant and Junior schools and degrouped at that time. Given the prohibition currently of individual governors serving on more than two governing bodies it must be doubted that one governing body can possibly fulfil the responsibilities for strategy, support, challenge and accountability for "groups" of schools.

The County Council has in the past argued that governing bodies of 20 are unnecessarily large and of 9 too small.

Governing Body Responsibilities - Staffing

The government proposes to replace the provisions currently in the SSFA dealing with staff appointments and dismissals with primary legislation which provide for Regulations to define the respective roles and responsibilities of LEA, Diocese, governing bodies and headteachers. This will provide for the Secretary of State after consultation to issue statutory guidance, or a code of practice.

It is suggested that "normally" governing bodies will be expected to confine their active involvement in school staff appointments to the leadership group with headteachers appointing other staff. Governors involvement beyond this can be varied by local agreement "taking account of the headteacher's advice".

Staff dismissals will be for the headteacher with governors involved at appeal stage except in VA schools where it is suggested that dismissals will be for the headteacher and one governor.

Comment

It is not clear whether the involvement of governors in appointments below the leadership group is for each governing body to decide (as now) or is effectively at the headteacher's discretion. The regulations or guidance which will set this out are not yet available.

Other Statutory Responsibilities

The government intends to seek broad powers to make Regulations and issue guidance that sets the framework for the exercise of governing body functions. Repealing current provisions in primary legislation will enable "agreed changes to be implemented more quickly", creating a "responsive system", "adapting more readily to change with room for innovation".

Comment

The "devil" will be in the detail here and we will not be able to judge what is intended by way of change until we see the Regulations and guidance. More frequent, faster and easier changes in fundamental responsibilities will be possible where "guidance" is the vehicle and occasions apprehension at the resulting confusion in the minds of governors.

Governing Body Procedures

It is proposed that governing bodies should have "the maximum possible amount of freedom and flexibility" to determine their working arrangements with "appropriate safeguards to secure accountability". Schools will be allowed to regulate their own procedures with Regulations establishing minimum requirements and restrictions concerning:

_ The nomination and election of Chairman, Vice Chairman and Committee Chairman

_ The frequency, timing, location and notice of meetings

_ The appointment and duties of a clerk

_ Delegation of functions

Views are invited on the possibility of simplifying quorum arrangements so that a single quorum of one-third is required for all decisions regarding membership of the governing body and its committees and the delegation of any functions.

It is suggested that there should be scope for governors to call "to account" individual governors whose behaviour is inappropriate. Guidance will be issued incorporating a code of behaviour.

Comment

Governors fill a public office and collectively the governing body is responsible for the effectiveness, probity and accountability of a public service funded by public money. Rules are necessary to the fair and effective conduct of the business of any committee. The current Regulations covering the conduct of business are arguably unnecessarily detailed. However in many instances further levels of details have been introduced over the years to address real cases of abuse. Whilst retreating to a less prescriptive framework may be desirable the public are entitled to expect that those serving as "trustees" of the public interest do so within a common rule book. Every governing body agreeing its own Standing Orders albeit within a framework offers no such protection and draws governing bodies away from school improvement to procedural details.

It seems sensible in the climate of greater delegation and de-regulation to maintain a two-thirds quorum for membership and delegation decisions.

The circulation of correspondence, agendas, papers and minutes by e-mail should be encouraged as long as all governors have equal access. The availability of agendas and minutes on school web-sites would also be a step forward. The conduct of governing body meetings and the taking of decisions by e-mail however undermines the democratic and corporate nature of governance which is its essence.

DfES Consultation Paper

Appendix 2

"BETTER BEGINNINGS: Improving quality and increasing provision in early years education and childcare"

SECTION 1 : THE ROLE OF GOVERNING BODIES

New discretionary powers for governing bodies

1.1 The White Paper announced the Government's intention to promote `extended schools'. Many schools already recognise the benefits for them and their communities of providing additional services to their pupils, pupils' families and the wider community. Most schools already provide some before or after school study support; some provide space for sports or arts activities, community groups or Internet access; others work closely with other bodies to provide integrated services such as health services, childcare or adult education.

1.2 At present the scope for governing bodies directly to provide services benefiting the wider community is constrained by the term `conduct of the school' in legislation, which limits governors in activities which they can organise directly and which precludes activities such as childcare. The Government plans to legislate to enable governing bodies, including those proposed for nursery schools, to provide for a range of activities for the benefit of their staff, for children and parents, and for the members of the wider community. The governing body could provide these activities directly, in partnership with others, or through another provider on the premises. The power to run these activities will be separate to the governing body's prime responsibility for the conduct of the school and therefore costs will be met from outside the delegated budget.

1.3 We know that many governing bodies want these wider powers. This will not be a duty: governors will have the choice about whether to begin providing or to extend their family and community facilities and services.

Question

Q1. We would welcome your views on the proposal that we should legislate to give governing bodies the choice to provide a wide range of family and community facilities or services.

Comments:

Yes, such a proposal would be welcome in that the opportunity to establish services directly for the community would obviate the need to establish voluntary management committees. This would remove a hurdle to speed up and encourage much needed additional provision.

Governing bodies for maintained nursery schools

1.4 Current legislation requires all maintained schools to have governing bodies. At present this does not apply to maintained nursery schools. We propose that nursery schools are required to have legally constituted governing bodies, operating within the modernised framework for school governance as set out in the school governance consultation document, "The Way Forward - A Modernised Framework for School Governance". The more flexible constitutional arrangements proposed in this document will make it easier to extend governance arrangements to nursery schools. The new approach can accommodate the different balance of teacher and non-teaching staff in nursery schools, as well as accommodate, within the community category for governors, other partners who may be involved in assisting the school to deliver early years provision. In addition, the proposal that a governor's term of office may be `up to four years' will assist nursery schools to set terms for parent governors that reflect the relatively short period that children spend at such schools. The Governance Consultation document also confirms that the Government proposes to introduce a provision to enable schools to federate under a single governing body (as well as allow two or more governing bodies to meet jointly and to form joint committees). This would allow a nursery school and infant or primary school to be run as separate schools by a single governing body or separate governing bodies to take joint decisions on specific issues.

Question

Q2. Should maintained nursery schools be required to have legally constituted governing bodies?

Yes No Don't know/no comment

Additional comments:

This is currently the position in Hampshire nursery schools, including the full delegation of budgets. This has enabled nursery schools to take an equal footing with other schools in the importance of their work. All nursery schools are now early years centres. One is an Early Excellence Centre with a comprehensive management agreement. Proposed legislation will further support in the work of the governors in these centres.

SECTION 2 : PARTNERSHIPS

Adding childcare to name and responsibilities of Partnerships

2.1 Early Years Development Partnerships were established by section 19 of the School Standards and Framework Act 1998 to plan and co-ordinate Early Years Education in each LEA area. Following the publication of "Meeting the Childcare Challenge" in May 1998, Partnerships took on the additional role of planning and co-ordinating childcare and the newly formed Early Years Development and Childcare Partnerships (EYDCPs) started full operations in April 1999. We are proposing legislation to ensure that Local Authorities and Partnerships have a clear legal basis for their childcare functions.

Nature of the changes

2.2 The key parts of the legislation are:

- to change Partnerships' legal name to reflect their childcare functions;

- to add to Partnerships' functions that of reviewing the sufficiency of childcare provision and to prepare and Early Years Development and Childcare plan;

- to require Local Authorities, through Partnerships, to set up and run a Children's Information Service;

- for the Department to take specific powers to pay childcare grant to Local Authorities;

- to repeal that part of the Children Act which requires Authorities to review childcare provision in their areas.

2.3 The existing requirements set out in Section 19 would remain unchanged. The legislation would simply bring the childcare activities, already being undertaken by EYDCPs, onto a clearer legal footing.

SECTION 3 : FUNDING

Requirements of Nursery Education Grant (ROG)

3.1 We are currently reviewing the funding mechanisms for nursery education. We do not want to be constrained by current delivery arrangements. We are therefore seeking a power in legislation which will require that LEAs must ensure that those who deliver early education meet all the requirements of good practice irrespective of how the funding is delivered. These requirements, which are currently contained within the Requirements of Nursery Education Grant, are: meeting the Early Learning Goals, registration, SEN, the Foundation Stage Profile, a ban on corporal punishment, the elimination of unlawful racial discrimination, and the promotion of equality of opportunity.

3.2 The advantage of doing this is that it would be clear that LEAs, Early Years Development and Childcare Partnerships (EYDCPs) and practitioners should adhere to these key principles, irrespective of any delivery mechanism for funding.

Questions

Q3. Do you agree with the proposition set out in paragraph 3.1?

Yes No Don't know/no comment

Additional comments:

However, this will require mechanisms "to ensure the delivery." At one level this can be by signed agreements, but the enforcement will have cost implications, although one would expect Ofsted to report on these. The LEA will need to oversee developments.

Q4. Are there any other areas of good practice, either identified in ROG, or elsewhere, not currently enforced by legislation, that you consider should be included in a wider enabling power?

Yes No Don't know/no comment

Additional comments:

SECTION 4 : FOUNDATION STAGE

4.1 With the introduction of the Curriculum Guidance for the Foundation Stage last year, it became clear that changes needed to be made to the statutory baseline assessment arrangements so that they would reflect children's experience at the Foundation Stage.

4.2 The Qualifications and Curriculum Authority (QCA) consulted with early years practitioners, LEAs, baseline assessment scheme providers, early years organisations, parents and other partner organisations.  A consultation document published in December 2000 contained our proposals for revising statutory baseline assessment and the key issues that need to be considered.  This included a proposal to move the assessment to the end of the Foundation Stage (which for the majority of children is the end of the reception year in primary school) and assessing the progress made by each child towards the Early Learning Goals.

4.3 The QCA's consultation process was completed on 31 January 2001. There was strong support for a single national scheme.

4.4 We will therefore legislate to replace the current baseline assessment arrangements with a single national end of Foundation Stage Profile based on the Early Learning Goals. We will aim to introduce the new profile in the academic year 2002/03.

4.5 We will also legislate to include the Foundation Stage of Education as part of the National Curriculum and that it should apply in all publicly funded early years settings.

DfES Consultation Paper

Appendix 3

School Admissions

The main changes proposed are:

· requiring co-ordination of admissions systems and school place allocation by LEAs, on a locally agreed basis which allows schools which are their own admission authority (foundation and voluntary aided schools) to apply their own admission criteria and feed the results into the LEA for allocation purposes;

· clarifying the law on parental preference, to resolve any doubts LEAs may have about whether their present or proposed systems comply;

· making the current voluntary Admissions Forums mandatory, with a role to advise all admission authorities in their area on admissions issues, including the sharing of pupils with challenging behaviour and from other vulnerable groups;

· ceasing to use standard numbers to establish how many pupils a school can take, relying instead on admission numbers set as part of admission arrangements based on the new capacity assessment;

· amending legislation so that objections to the Adjudicator can be made by all those who ought to have been consulted on intended admission arrangements, rather than just those who actually were; and so that community and voluntary controlled schools can object to the arrangements of local foundation and voluntary aided schools which affect them;

· relaxing consultation requirements on admission authority schools, so that, after an initial year in which all will have to publish intended admission arrangements, they need only publish them every other year, if nothing has changed and there were no objections previously. Alternatively, providing for LEAs to carry out consultation on behalf of these schools.

DfES Consultation Paper

Appendix 4

"Exclusion Appeal Panels"

This short consultation paper sets out four proposals and invites comment on each. The proposals are:

1 To make it a statutory requirement for an appeal panel to balance the interests of the excluded pupil against the interests of all the other members of the school community. This might be by means of a provision similar to that inserted into the previous legislation relating to exclusion appeals by section 7 (4) of the Education Act 1997 which required that: "In deciding whether the pupil in question should be reinstated (and, if so, the time when this should take place) ...an appeal committee shall have regard to both the interests of that pupil and the interests of other pupils at his school and members of its staff." That provision was repealed by the School Standards and Framework Act 1998. It was thought sufficient at that time to embody this principle in guidance to which appeal panels must have regard by virtue of section 68 of the 1998 Act when discharging their specified functions. However, there is a case for re-inserting it in legislation for emphasis.

Questions for consultees: Should the principle be formulated in the same way as the 1997 amendment or differently? In practice how can the interests of other members of the school community best be represented before the panel?

1 To make it clear in the legislation that an appeal panel's remit is not to review the procedure preceding an appeal hearing but instead to consider afresh the question of whether the pupil should be reinstated. The reason for proposing this change is that a number of panels have reinstated pupils on `technicalities' relating to prior procedure, even though they were persuaded on the merits of the case that the exclusion was justified and would not otherwise have directed that the pupil should be reinstated. We want to ensure so far as possible that panels focus on the substantive issues (Was the pupil guilty of the misconduct in question? Were there mitigating or aggravating factors? Was permanent exclusion a reasonable response in the circumstances?) rather than on any procedural irregularity that may have occurred. This might be achieved by including express provision in legislation that an appeal panel may not direct that the pupil in question should be reinstated on the basis of any failure to comply with a procedural requirement in a pupil's permanent exclusion from school by a head teacher and/or the governing body's subsequent review of that decision.

Questions for consultees: Do you agree with this approach?

2 To change the constitution requirements relating to the composition of appeal panels so that, whilst they must remain independent, they consist predominantly of people with direct experience of classroom management. Panels must consist of 3 or 5 members. At present the law requires a mixture of lay members and persons who have experience in education, are acquainted with educational conditions in the authority area or are parents of registered pupils at a school. The proposal is that panel member should comprise a majority of people with direct teaching experience - serving or former heads, deputy heads, members of the senior management team and senior classroom teachers.

Questions for consultees: Should the constitution of appeal panels be changed to require the majority of members to have direct experience of classroom management? What steps will LEAs need to take to ensure that they can assemble panels in a timely fashion?

3 The Secretary of State wishes also to consult on a separate matter relating to exclusions but unrelated to appeals. Ina letter dated 21 January 2000 the Department stated that the duty on a governing body (through their discipline committee) to meet to consider all fixed period exclusions of more than 5 school days in total in any one term can be over-burdensome on schools. It was proposed to change the legislation (section 66 of the School Standards and Framework Act 1998) so that, although the head teacher's duty to inform the governing body of all such exclusions and the parent's right to make representations should continue, the governing body's duty to meet to consider the circumstances will arise only where the total of fixed period exclusions would be more than 15 school days in total in any one term. There has been no suitable legislative vehicle in which to bring this change before Parliament. The Secretary of State is minded to use the forthcoming Education Bill to introduce the proposed change but welcomes views on this subject.

Questions for consultees: What fixed period exclusions should be reported by the headteacher to the governing body? If the governing body is no longer automatically to meet to consider all fixed period exclusions totalling between 6 and 15 school days in any one term, how should any parents' representations about such exclusions be dealt with? Should such representations be allowed orally or in writing, or just in writing?

The background and context for the consultation is concern about the quality and consistency of panels decision-making. This concern has led the Department to produce jointly with ISCG (Information for School and College Governors) a training pack for use by local authorities in training panel members. The pack was issued in August 2001. It is based on the current legislation as amended on 7 June 2001.

DfES Consultation Paper

Appendix 5

16-19 Organisation and Inspection

The document sets out proposals which include:

· enabling the Learning and Skills Council to put forward proposals for the reorganisation of 16-19 provision in an area, in certain circumstances, and following consultation with those likely to be affected;

· making it easier for good schools without sixth forms to open them; and

· enabling Ofsted/Adult Learning Inspectorate to carry out area inspections of provision for 14-19 year olds.

The document lacks detail on revenue and capital funding arrangements which would be essential to any decisions about provision. The best way forward would appear to be for the county council to work closely with the local Learning and Skills council to establish a coherent local planning mechanism in order to avoid wasting time and energy on proposals which cannot be funded.