Contacts:

Louise Read (Senior Solicitor, Chief Executive's Department); Telephone 01962 847344; e-mail: [email protected]

Ian Lawson (School Organisation Officer, Children's Services Department); Telephone 01962 846350; e-mail: [email protected]

1 Summary

1.1 This report considers the implications of the Education and Inspections Act 2006 on aspects of school organisation decisions:

a. Decision making after the abolition of the School Organisation Committee

b. The requirement to hold "competitions" in most cases where new schools are proposed.

1.2 As some of the issues raised relate to the delegation of decisions, appropriate recommendations are made to Cabinet.

2 Recommendations

That the Executive Member for Education recommends that the Cabinet approve the following:

a) That in accordance with the County Council's constitution the Director of Children's Services is authorised to

(i) undertake local consultations and to publish statutory proposals relating to enlargements of existing schools; and

(ii) undertake local consultations and to publish public notices inviting proposals for the establishment of new schools,

where the proposals are named in an approved capital programme.

b) That all other proposals by the local authority for the reorganisation of schools, including amalgamations and closures, and other "prescribed alterations", should be considered by the Executive Member for Education prior to a decision by the Executive Member regarding the undertaking of formal consultations in respect of the proposals.

c) That the outcome of any consultations in relation to (b) above which involve the proposed closure of a school be considered by the Cabinet except those proposals which:

(i) form part of an amalgamation of schools; and

(ii) all the governing bodies of the schools involved in the proposed amalgamation give general support to (the applicability of this provision to be determined by the Executive Member for Education).

Following such consideration, the Cabinet shall determine whether to publish statutory proposals.

d) That the outcome of all other consultations in relation to (b) above be considered by the Executive Member for Education prior to a decision by the Executive Member regarding the publication of statutory proposals or, where applicable, the publication of a public notice inviting proposals for the establishment of a new school.

e) That the existing arrangements in accordance with the County Council's constitution and current practice continue whereby the Director of Children's Services is authorised to determine all proposals that fall to the County Council to decide, where no objections have been received in response to the published statutory proposals, except where these relate to a new school competition.

f) That the decision on all proposals involving a school closure that fall to the County Council to decide (save those made by proposers other than the County Council) be made by the Cabinet except those proposals which:

(i) form part of an amalgamation of schools; and

(ii) all the governing bodies of the schools involved in the proposed amalgamation have not objected to (or have subsequently withdrawn any objection to).

g) That the decision on all other proposals that fall to the County Council to decide be made by the Executive Member for Education.

h) All the above provisions are subject to the requirement that where linked statutory proposals all fall to be determined by the County Council:

(i) where at least one of the statutory proposals falls to b determined by the Cabinet, the Cabinet shall determine all the linked proposals; and

(ii) where at least one of the statutory proposals falls to be determined by the Executive Member for Education, with no proposals falling to be determined by the Cabinet, the Executive Member for Education shall determine all the linked proposals.

i) That Hampshire County Council shall only enter its own proposals into a new school competition where:

(i) no other bids have been received before the close of the competition; or

(ii) in consultation with the Executive Member, the Director of Children's Services considers that there is good reason to do so,

In either case the Director of Children's Services be authorised to submit a bid on behalf of the County Council

j) That where a new school competition is being held, the Director of Children's Services is authorised to seek the approval of the Secretary of State for any bid that is submitted by the County Council in accordance with (i) above to be for a community school.

k) That discussions with diocesan bodies should continue, in relation to the identification of new schools in new areas of major housing development where the provision of a voluntary aided school would be appropriate to secure diversity of provision and that, in such situations as he considers appropriate, the Director of Children's Services be authorised to support any request made by the diocesan body to secure the Secretary of State's consent to publish statutory proposals without the need for a new school competition.

3 Education and Inspections Act 2006

3.1 This new legislation is expected to come into force on 25 May 2007. A summary was considered by the Executive Member for Education on 18 January 2007. There are two specific issues that relate to school organisation decisions where it is necessary to consider the implications on the County Council's decision making process. These relate to the abolition of the School Organisation Committee and the requirement to hold "competitions" in most cases where new schools are proposed.

4 Decisions on school proposals

4.1 Under the previous legislation, most decisions relating to new schools, reorganisations, closures and other alterations were made by the School Organisation Committee, unless they were local authority proposals and no objections were received, in which case the local authority had the power to make the decision.

4.2 The 2006 Act abolishes the School Organisation Committee, on a date yet to be announced but likely to be in late May 2007. Following this abolition, many decisions fall to be decided by the local authority, with others made by the Schools Adjudicator. The DfES has issued draft regulations with regard to these matters and some of the relevant provisions are considered below.

4.3 Decisions that may be made by the local authority are likely to include those for new schools (except where the local authority is the proposer), closures and "prescribed alterations" which, in relation to community schools, are likely to be the enlargement of an existing school, the addition or removal of provision for special educational needs, changes in age range, changes involving the provision of education based on the sex of the pupils, the introduction or ending of boarding provision, in specified circumstances the transfer of a school to a new site and in specified circumstances the discontinuance of provision at any site. In respect of other categories of schools, the decision-maker will depend upon the nature of the proposed alteration.

4.4 Where the local authority is the decision maker, depending upon the nature of the proposal, it is likely that there will be a right of appeal to the Schools Adjudicator exercisable by governing bodies and/or trustees , dioceses, the LSC and other proposers.

4.5 Decisions on other proposals, particularly new schools where the local authority is the proposer, will be made by the Adjudicator and it is likely that there will be no right of appeal. In some limited circumstances, a governing body may determine its own proposal, but there is likely to be a right of appeal to the Adjudicator exercisable by the local authority.

4.6 In order to respond to these new arrangements, it is necessary to review the current processes for school organisation decisions, having regard to the County Council's current practice, which stems from a review agreed by the then Schools Sub-Committee in 1980 and the more recent general delegation of authority contained within the County Council's constitution. The proposals suggested below seek to update this to reflect current requirements.

4.7 There are three stages in the process - Consultation, Publication of notices and Decision Making. It is expected that Regulations made under the Act, and statutory advice to be published by the Secretary of State will prescribe much of the content of each stage.

· Consultation - The 1980 review gave a general approval to the publication of notices, and impliedly the undertaking of consultation, for the establishment of a new school or enlargement of the premises of an existing school provided that the project is listed in the approved capital programme. All other proposals, for example for reorganisations and closure of schools, require specific approval from the Executive Member before consultations commence. It is proposed that the same principles should apply to future proposals.

· Publication of notices - In respect of the proposed establishment of a new school or enlargement of the premises of an existing school that is listed in the approved capital programme, it is proposed that the Director of Children's Services continue to exercise delegated authority in publishing the appropriate public notices in accordance with the Council's policy regarding new school competitions. In respect of other proposals, the publication of public notices will require the approval of the Executive Member or Cabinet, having regard to any responses received to the consultations. Current practice is that Cabinet should decide whether to proceed with any proposals involving the closure of a school. It is proposed that this distinction should remain unless the proposals involving the school closure are for an amalgamation of schools and the governing bodies of the schools being amalgamated are generally in support of the proposals. Section 5 of this report considers the specific case of new school competitions.

· Decision - Under the current procedure, the Director of Children's Services is authorised to approve proposals where no objections have been received. This has worked well and it is recommended that this should not change. One of the principles in the Act is that decisions should in many cases be made by the body that made the proposal. Applying the same principle to those decisions that fall to the local authority to decide, it is proposed that the decision on all proposals where objections are received, except those involving the closure of a school (save in the above mentioned circumstances), should be made by the Executive Member for Education, and those involving a school closure by the Cabinet.

· In accordance with regulations made under the 2006 Act, it is anticipated that various proposals made by proposers other than the County Council will fall to the County Council to determine. It is proposed that where no objections have been made regarding the proposals during the representation period (or any objections made have been subsequently withdrawn) these proposals will be determined by the Director of Children's Services. Where objections have been made, these proposals will be determined by the Executive Member for Education.

5 School competitions

5.1 The Act extends to primary and special schools the requirement that the establishment of any new school, including one created through the reorganisation or amalgamation of existing schools, must be the subject of a "competition". In essence, a competition means that, where the local authority identifies the need for a new school, it must invite other proposers to bring forward proposals to set up the school. As the local authority specifies what is required in terms of places, timing etc, and (except for voluntary aided schools) is responsible for providing the new school buildings and other facilities, responses to a competition will mainly relate to the status and governance of the school.

5.2 A more detailed outline of the procedures for a competition are given in the appendix to this report.

5.3 The Act provides exceptions to the requirement for a competition, either in "special cases" (new maintained nursery schools, new foundation or foundation special schools providing education only for children above compulsory school age and maintained foundation, voluntary or foundation special schools for children above compulsory school age replacing certain independent schools) or where the Secretary of State gives specific consent. Guidelines have not yet been published, but a communication from the DfES states that "ministers have said that they will be sympathetic to requests to publish proposals for any new primary schools which are straight amalgamations of infant and junior schools".

5.4 There is a presumption that new schools, even those proposed by local authorities, will have foundation status. However, a local authority may enter proposals for a new community school if certain conditions are met. As detailed in the appendix, this will depend on the local authority's APA rating and in some cases also on the levels of diversity in existing local schools.

5.5 There are no precedents for the establishment of primary or special schools thought a competition process, and only a few local authorities that have gone down that route for "new" secondary schools. In those cases, the DfES / Office of the Schools Commissioner has appointed consultants to encourage organisations and individuals to bid to be the promoter who sets up the new school, including the offer of government support to help them put in a bid. It is not known whether a similar approach will apply in relation to new primary or special schools.

6 Implications for Hampshire County Council

6.1 Although it is not likely that there will be any new secondary school proposals in the foreseeable future, the capital programme includes several new primary schools, including Andover (East Anton), West of Waterlooville, Basingstoke (Park Prewett) and Aldershot Urban Extension. As the public notices for the establishment of the East Anton school have been published under the previous statutory framework, this proposal will fall outside the competition requirements.

6.2 To enable appropriate action to be taken in future cases, there are a number of issues that need to be addressed, as follows:

· Should the local authority be the proposer?

The Act provides for the local authority to decide proposals for new schools, except where it is the proposer (or a member of a consortium that is the proposer). Such proposals made by the local authority have to be determined by the Adjudicator. Under the Act, the overarching duties of local authorities are to promote high standards, fair access to educational opportunity and the fulfilment of every child's educational potential. Local authorities will also be required to secure diversity in the provision of schools and increase opportunities for parental choice in the provision of schools. This would include support for the establishment of trust schools and academies where these would deliver good quality educational outcomes.

If the local authority is the decision maker, it is in the best position to assess the strengths and weaknesses of the bids in the light of the views expressed locally. This is consistent with the principle that decisions should be made by people closest to the communities involved. It follows, therefore, that in cases where there is at least one bid in response to a competition that meets the requirements specified in the competition notice, the local authority should not itself make a bid. There will, however, need to be a default position that the local authority will make a bid if no others are received within the specified period. It is proposed that the Director of Children's Services should have the authority to submit a bid in these circumstances. This must be done within three weeks from the end of the "competition" period.

· Status - community or foundation

As detailed in the Appendix, there is a general presumption in the Act that new schools proposed by local authorities should have foundation status, unless specified conditions are met. In the case of Hampshire, where the current APA rating for Children's Services is 3, proposals for a community school can be made with the agreement of the Secretary of State. As the principal differences between community and foundation schools established by a local authority relate to the ownership of property, admission of pupils and the employment of staff, there is a strong argument that the local authority has greater expertise in these areas than a newly appointed governing body, and that it would be in the best interests of the pupils that will attend the school for this to be maintained by the school having community status. This would then leave the new governing body free to make its own decision about whether it is in the school's best interest to take on these additional responsibilities once the school is up and running.

· Proposals for new Voluntary Aided schools

It has been practice for many years to invite diocesan bodies to establish new primary schools in areas of major housing development, where this would provide diversity of provision. On this basis, new Church of England schools have been established at Valley Park (Chandlers Ford) and Hatch Warren (Basingstoke) and discussions have taken place in relation to major development areas where two primary schools will eventually be required. Whilst it is possible for a diocese to make a bid in response to a new school competition, regard should be given to the long standing partnership with diocesan bodies and the different sources of capital finance for voluntary aided school building projects. As the Act provides for promoters, other than the local authority, to seek approval from the Secretary of State to publish proposals for new schools without the need for a competition, it is possible that this could facilitate the provision of new voluntary aided schools where there is agreement between the diocese and the local authority that this is appropriate to local circumstances. It is, therefore, proposed that the current dialogue should continue and that, in these situations, support should be given to a request made by the diocesan body to secure the Secretary of State's consent to publish public notices without the need for a new school competition.

7 Links with corporate priorities

7.1 The proposals in this report are expected to support of the County Council's corporate priorities to maximise wellbeing and enhance the quality of place, by providing an appropriate framework for decisions that satisfy the local authority's duty to promote choice and diversity in school provision by securing good quality and sufficient provision in the localities served.

7.2 It also supports the following outcomes of the Children Act:

Being healthy - as the location of schools within the communities they serve, thereby reducing the need for parents to transport their children by car, is a factor that is taken into account when school organisation proposals are made and approved.

Staying safe - by providing that children have access to a secure learning environment

Enjoying and achieving - by securing the provision of facilities to support a high standard of education .

Making a positive contribution - as the role of schools in their communities is a factor that will be taken into account in the decision making process.

Economic well-being - by ensuring that all proposals are beneficial to the children and communities that they serve.

8 Legal implications

8.1 The Education and Inspections Act 2006 has introduced some significant changes to the school reorganisation process and are still in a state of transition. This report is written on the basis of the draft regulations that the DfES has recently consulted upon and which are anticipated to be implemented on 25 May 2007.

9 Consultation

9.1 The draft regulations relating to new schools and changes in school organisation require extensive consultation with interested parties whenever proposals are brought forward. These consultations include governors, staff and parents at any schools involved, other local schools, other local authorities and a variety of other stakeholders..

10 Financial implications

10.1 None.

11 Personnel implications

11.1 None.

12 Impact assessment

12.1 Race and equality impact assessment has been considered in the development of this report and no adverse impact has been identified.

13 Crime prevention issues

13.1 The proposals in this report do not give rise to issues that have an impact on the prevention of crime.

14 Views of Local County Councillors

14.1 Local members will be consulted whenever proposals are made by the local authority and any views will be reported to the Cabinet or Executive Member as applicable.

Section 100 D - Local Government Act 1972 - background documents

The following documents discuss facts or matters on which this report, or an important part of it, is based and have been relied upon to a 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.

Guidance on the implementation of the 2006 Act issued by the Department for Education and Skills - letters dated 13 November 2006, 1 March 2007 and 26 April 2007.

Appendix

Education and Inspections Act 2006

Outline of procedure for the establishment of new schools

· If a local authority (LA) identifies the need for a new school, public notices must be published to invite proposals (i.e. a "competition"). The matters to be included in the competition notice are specified in regulations and relate, mostly, to location and area to be served, numbers and age range of pupils, admission arrangements, preferred specialism, other services (extended schools, early years etc) and the estimated capital cost.

· Unless certain conditions are met, the new school must have foundation or voluntary status or be an academy.

· Conditions under which an LA can propose a community school are

o Without the Secretary of State's approval if the LA has an APA rating of 4, or

o With the Secretary of State's approval if the LA has an APA rating of 3, or 2 if either less than 15% of community, foundation and voluntary schools are "eligible for intervention" or more than 15% of schools in the LA's area are foundation, voluntary, academies or city colleges.

· The LA is responsible for providing the site and (except for voluntary aided schools) the buildings for the new school.

· Within three weeks from the end of the notice period, LA must publish any proposals submitted in response, and may include its own proposals for a foundation or community school (if permitted). There is a six week period within which any person may submit objections or other comments.

· Within two weeks from the publication of these proposals, the LA must hold at least one public meeting to inform the public of the proposals received and the arrangements for making objections and comments. All proposers must be invited at all such meetings.

· Within two months from the end of the objection period, the proposals must be considered by the LA, who can reject all the proposals or approve any of the proposals with or without modification. If the LA has not made a decision within two months, the proposals must be referred to the adjudicator for decision.

· The preceding note does not apply to proposals made by the LA, or relate to the establishment of a foundation school with a foundation (aka "trust school") where the LA is to be involved in the foundation. These must be referred to the Adjudicator for decision.

· "Aggrieved persons" can appeal to the Adjudicator against decisions of the LA. These include diocesan bodies and promoters. Appeals must be made within four weeks from the date the LA decision is notified.

Notes:

1. A "new school" is likely to include a school that replaces an existing one, so would include schools established under the normal procedure for amalgamations (except that ministers have indicated that they are mindful to agree that the straight amalgamation of a pair of infant and junior schools could proceed without a need for a competition) and also schools that transfer to a new site unless they qualify for exemption under the existing rules (which cover transfers to a site within two miles in cases where it is not possible to bring the premises up to standard within the existing site).

2. The competition requirements do not apply if it is proposed (from the outset) to establish an academy, but that does not preclude sponsors putting forward proposals for an academy in response to a competition.