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ENSURING IMPROVEMENT IN OUR SCHOOLS - ANALYSIS OF CONSULTATION RESPONSES
Responses to Consultation Paper
Proposals for Education Authorities and their Schools
Question 1 - The proposals are similar to the Ministerial powers introduced by the Local Government in Scotland Act 2003 and are intended to promote consistency in the Executive's approach to relations with local authorities. Do you agree with this approach?
9. The majority of respondents agreed with this approach. Consistency in approach was seen as vital in maintaining standards and ensuring openness.
10. Most education authorities, however, disagreed with the principle behind the proposed new legislation. It was argued that there is no evidence of schools or education authorities not responding successfully to HM Inspectorate of Education (HMIE) recommendations for improvement. It was suggested that Scottish Ministers already have powers under Section 70 of the Education (Scotland) Act 1980 (the '1980 Act') to intervene where necessary and whether there was a real need for the proposed new powers was questioned. It was also argued that the Local Government in Scotland Act 2003 (the '2003 Act') contains the powers that the draft bill proposes to introduce. It was generally agreed, however, that the suggested approach would be consistent with the 2003 Act and that it would be extremely unlikely that Ministerial intervention would be required.
11. It was argued by one authority that the proposals assume that all local government departments are similar and can all be measured by the same parameters, but this was not the case in reality. The proposals also assume that HMIE work in exactly the same way as other audit bodies but, again, it was argued that this may not be the case. It was mentioned that a substantial range of checks and balances presently exists within the education system at both local and national levels. It was therefore difficult to see what benefits might accrue from the change in approach and it was felt that the proposals would add a layer of expensive bureaucracy.
12. There were a few suggestions for alternative legislation to be brought forward and for amendments to be made to the proposed legislation. One suggestion was that alternative legislation be proposed that would require local authorities to use resources intended for improving education for this specific purpose, preventing them from assigning the resources to other purposes. Another idea was that if this approach was deemed acceptable, consideration should be given to adopting the same model for Ministerial intervention in breaches of statutory duty i.e. replacing section 70 of the 1980 Act with a similar model to that proposed in the draft bill and adopted in the 2003 Act. A third suggestion was that the draft bill should include amendments to school board legislation so that headteachers would be employed by education authorities rather than appointed to a particular school. This would enable authorities to re-deploy successful headteachers across their area to schools requiring to make improvements.
Question 2 - The proposals limit use of the new Ministerial powers to circumstances where HMIE considers them to be necessary. Should the powers be limited in this way?
13. Most respondents agreed with this proposal. It was believed important that any referrals to Ministers should be generated by those who have an in-depth knowledge of educational issues. HMIE were seen as having the experience and resources to work with education authorities to tackle problems and it was thought to be crucial that any exercise of the new powers should be based on sound and impartial advice. However, it was pointed out that a school could potentially be left too long due to the length of time between HMIE visits. There was also some concern that Scottish Ministers may want to intervene in cases where HMIE has not recommended they take such action.
14. There were a number of respondents who felt that others should be involved in referrals to Ministers. One noted that there may be circumstances where Ministers consider it necessary to intervene even if HMIE has not recommended intervention, for example, where there have been multiple complaints from parents/teachers. The role of parents, teachers and school boards in securing improvement was highlighted by others. It was felt important that their views and the views of the wider community should be taken into account. One respondent asked whether schools would be able to refer as well as HMIE, and it was also suggested that HMIE should inform the Scottish Commission for the Regulation of Care (Care Commission) of any referrals they propose to make to Ministers.
15. There were a number of comments on the role of HMIE, in particular, that their new powers could cause conflict. It was stated that their role to support schools and the good partnerships and trust built up may be threatened by their role in recommending intervention. It was thought that HMIE would gain a considerable degree of power under the proposals and that their present patterns of accountability may not be sufficiently rigorous to ensure they could perform this new role while maintaining the confidence of education authorities. Respondents were wary that HMIE's judgement would always be seen as correct and that they would effectively be acting as judge and jury in considering responses to preliminary notices.
16. Among those holding this view, there was considerable concern that there may be inconsistencies in the views of inspectors and that the judgement of HMIE would be informed by the developing nature of relationship between HMIE and the education authority. It was suggested that if HMIE are to be the sole advisors, a review of the organisation may be needed and that effective audit processes must be in place. It was felt that HMIE's procedures would require to be more robust than at present as they would have to take more account of the organisational context of schools, authorities and the government, particularly in the areas of budget, resources and accommodation. One respondent also suggested that much work needs to be done by HMIE on improving the mainstreaming of equality in schools.
17. A few respondents asked what criteria HMIE would use in deciding to recommend intervention.
Question 3 - Do you agree that the scope of the education authority proposals should allow action after HMIE inspections of both schools and education authorities?
18. The vast majority of respondents answered "Yes" to this question. It was felt that it would be inconsistent to limit the powers to cover either schools or education authorities alone.
19. The present arrangements for the inspection, subsequent action planning and follow- through were viewed as effectively addressing HMIE recommendations for improvement and it was felt that they should be retained. It was, however, pointed out that recommendations for improvement may not always be levelled at education services, for example, a joint inspection by HMIE and the Care Commission may result in recommendations which have implications for several services.
20. One respondent flagged up the fact that the arrangements in 2003 Act are concerned only with the operation of the local authority and not with the operational units e.g libraries, sports centres etc. Based on this point the respondent felt it could be argued that the scope of this bill should be limited to education authorities. Conversely, another respondent was of the view that the proposals should be limited to schools as the education authority can act as a mediator between HMIE and the school, whereas there is no similar mediator to act with regard to education authority inspection reports.
21. It was pointed out by several respondents that HMIE and education authorities have a joint responsibility to secure improvement. A suggestion was put forward that following inspections, the HMIE inspection team could be involved in discussions and formulating a strategy to address areas needing action identified during the inspection. However, it was mentioned that this could be difficult if standards within HMIE vary. It would be important for there to be a check on the findings of the inspection team.
22. It was also mentioned that any action should involve the Care Commission, as a referral to Ministers could impact on their work.
Question 4 - Any enforcement direction would be addressed to the education authority. This means that the authority would be responsible for complying with the direction. Do you agree that this is the best way of securing improvement?
23. A large majority of responses agreed with this proposal. It was agreed that as the provider of education with a duty of care, the direction should be served on the education authority. It was commented that this proposal mirrored the status quo as the education authority is currently responsible for ensuring that schools' action points are addressed. It was also mentioned that it should be made clear in enforcement directions what role the education authority has in securing improvement.
24. On the other hand, one respondent queried the logic of communicating with schools through authorities instead of approaching the school direct. It was suggested that the HMIE inspection team could work with the school to address areas requiring action before directing the education authority to oversee action towards meeting recommendations. A view was put forward that there was more likely to be commitment to the continuous improvement agenda if there was a sense of partnership and ownership. Another view was that the best way to secure improvement comes from within the organisation itself.
25. It was thought that this proposal was in line with the Standards in Scotland's Schools etc. Act 2000 which placed new responsibilities on education authorities to secure improvement in school education. It was, however, pointed out that there was a need for great care to be taken to ascertain and analyse the impact of school/authority actions taken towards improvement before Ministers were to take any further action.
26. It was pointed out that any action requested of an education authority has to be feasible in educational, financial and human resource management terms. There may be genuine reasons for an education authority being unable to comply with the terms of an enforcement direction and there requires to be scope for negotiation in such a situation. There was a concern that the presence of a legislative framework would allow for a unilateral imposition of certain actions on an authority whether or not it was able to meet the requirements of the direction.
27. A few respondents did not agree that enforcement notices were the best method of securing improvement. It was stated that there was no evidence that enforcement works successfully. Respondents thought it would be 'issuing a threat' and therefore not conducive to securing improvement. It was suggested that the best way of securing improvement would be through a continuing professional dialogue. There were queries over who would intervene where an enforcement direction had been served and improvement was still not forthcoming. It was also queried whether consultants or professionals would be used and to what extent authorities or schools could expect constructive support and engagement from HMIE or the Scottish Executive Education Department since the overarching statutory duty is placed on Scottish Ministers. It was felt that further consideration should be given to the consequences of education authorities being unable or unwilling to agree with the enforcement direction.
28. One respondent highlighted that improvement in schools depends more critically on factors other than legislation. For example, they were of the opinion that the quality of entrants to the teaching profession is of paramount importance.
Question 5 - The proposals outline a two-stage process to give education authorities a formal opportunity to explain their position. Do you agree with a two-stage process?
29. The vast majority agreed with the proposed two-stage process. It was viewed as allowing a reasonable time to draft a response, plan for and implement improvements. A two-stage process was also seen as more in keeping with the philosophy of support and joint responsibility. Such a process was seen as building on the successes of the current improvement model, which is based on dialogue and partnership. It was agreed that there must be an opportunity for the education authority to argue its case and draft a response taking account of local circumstances. It was pointed out that a preliminary notice would be likely either to satisfy the Minister that the authority was taking satisfactory steps or to ensure that the authority engaged satisfactorily with recommendations.
30. However, it was also commented that an enforcement direction implies the expertise to direct improvements lies outwith the school or education authority, and underestimates the benefits of actively engaging the school/authority in securing improvement. It was believed that a process of preliminary notice and enforcement direction could build suspicion rather than trust.
31. A suggestion was put forward that the preliminary stage could be outwith the directive framework, allowing parties to resolve any difficulties without resorting to the legislative process. An informal approach could be brought into the process because whether or not an enforcement direction was issued, a preliminary notice would mean that an authority had been called to account within the terms of the legislation. This view was echoed by another respondent who was concerned about the requirement to report to Parliament on any use of the powers. The practice of 'naming and shaming' would be counter-productive.
32. One education authority thought that as part of the two-stage process there should be a check on the findings from the original HMIE referral to ensure that standards are consistent.
33. Finally, there was unease at the fact that HMIE would be referring a school or authority and then assessing any action taken as a result. Instead it was felt that once both HMIE and the authority have submitted their cases, there should be some form of independent scrutiny to assist Scottish Ministers in reaching a view.
Question 6 - We consider these proposals in relation to education authorities to be cost-neutral. Do you agree? If not, what financial impact do you think these changes will have for education authorities? It would be helpful if these could be split between one-off and ongoing costs, plus any evidence you have to explain your conclusions.
34. There was a mixed response from the respondents who answered this question, with a minority agreeing that the proposals would be cost-neutral. A larger number of respondents were undecided or said they did not know while a majority disagreed that the proposals would be cost neutral. Some respondents stated that it would be easier to assess the financial implications if the Executive had given examples of the exercise of the powers or the requirements that might be placed on authorities.
35. Most respondents felt that there would be both one-off and ongoing costs in relation to the proposals. The main costs identified were those that would be involved in meeting the requirements of any enforcement direction and it was recognised that these would depend upon the type of action that was required. The issue of accommodation and schools buildings or any staffing/management changes including redundancy/retirement costs were mentioned as the sort of actions that would involve additional, unplanned expenditure. Staff training, on-going support or management support to enable staff to meet recommendations were identified as ongoing costs.
36. There was some concern that resources may have to be diverted from a planned programme to other areas in order to meet HMIE recommendations, adversely affecting planned Quality Assurance programmes. It was pointed out that where there have been long term issues, such as the condition of school buildings, the degree of flexibility with HMIE in the past has been welcomed by authorities. Concern was expressed that the facility to discuss the recommendations from reports that might involve significant resources might be lost. It was felt that the redistribution of resources to fund improvements may often be neither possible nor desirable and that cost implications of improvements could well be one of the main reasons given by local authorities for non-compliance.
37. Administrative costs were also highlighted. Local authority staff would have to be allocated to respond to action points in terms of monitoring and evaluating progress and to assist schools. They would also have to compile counter evidence and seek advice from lawyers on preliminary notices. In addition, it was suggested that additional costs were likely to be incurred by the Scottish Executive and HMIE in administering and activating the 2-stage process of intervention.
38. Several respondents felt that there would be a need for more resources to be made available to local authorities or schools. It was felt that the development of the National Priorities and the increased role of local authorities in the follow-through stage of HMIE inspections had already placed increasing demands on local authority managers and quality improvement staff. One respondent suggested that Scottish Ministers should make restructuring funds available alongside any enforcement direction issued while another recommended that a capital fund be established to finance recommendations. A further suggestion was that action could begin prior to Ministerial intervention if HMIE were to have access to interim budgets to offer consultancy for short periods or if they had the means to provide training sessions.
39. Those who agreed that the proposals were likely to be cost-neutral commented that authorities have quality assurance systems and teams in place and therefore the action points would most probably be contained within existing procedures for quality assurance and dealt with by these teams. It was felt that most recommendations would be met by existing budgets, although there may be a need for reprioritisation and adjustment to financial plans.
Proposals for Grant-aided Schools
Question 7 - Do you agree that grant-aided schools should also be covered by the legislation?
40. All respondents who answered this question agreed with the proposal. It was commented that the promotion of equal opportunities would be enhanced by ensuring that all schools are subject to the same level of scrutiny.
Question 8 - Do you agree that the procedures for grant-aided schools should be similar to those for education authorities?
41. All respondents who answered this question agreed with the proposal. It was stated that pupils of grant-aided schools were entitled to the same level of protection and therefore that the schools should be subject to the same regulations as local authority schools. It was agreed that legislation governing education in Scotland should be applied consistently in all schools.
42. One respondent commented that the procedures should be considered alongside the relevant management structures of grant-aided schools and that any distinct philosophy of these schools should be safeguarded.
Question 9 - We consider these proposals in relation to grant-aided schools to be cost-neutral. Do you agree? If not, what financial impact do you think these changes will have? It would be helpful if these could be split between one-off and ongoing costs, plus any evidence you have to explain your conclusions.
43. There was a mixed response to this question with a number of respondents unsure. As with question 6, many respondents felt that the proposals may not be cost neutral and that it would depend on the nature of the action to be taken as a result of either a preliminary notice or an enforcement direction. It was indicated that costs to meet Health and Safety requirements in grant-aided schools could be particularly high.
44. It was argued that the proposals could be seen as cost-neutral as the school should have been taking action in a particular area anyway. However, it was also highlighted that grant-aided schools do not have the budget of a local authority to fall back on.
45. Of those who felt that the proposals may not be cost-neutral, one respondent pointed out that grant-aided schools may be charging fees to local authorities.
Proposals for Independent Schools
Question 10 - In the definition of an independent school, we plan to remove the reference to the minimum number of pupils so that no school escapes appropriate scrutiny. Do you believe this is the correct approach?
46. All respondents who answered this question replied "yes". It was commented that if some schools were not subject to scrutiny it could open up the possibility that standards could drop, disadvantaging children as a result. It was felt that the proposals seem sensible as loopholes had been exposed in the past and it was generally agreed that the care and welfare of pupils was of paramount importance. However, one respondent said that there was a lack of published evidence to show the extent of the problem in the independent sector.
47. There was also a comment on home educators - one respondent felt that there may be difficulties in defining an independent school if home educators are to be excluded. They pointed out that many parents operate under collective arrangements with like minded families, operate specialist centres or employ tutors and that the identification of such collective arrangements or centres may prove problematic.
Question 11 - What type of information do you think should be necessary for a person who wishes to operate an independent school to give before the school can be registered? Do the examples given under Registration of an independent school on page 20 form a useful basis?
The list referred to was: requirement to conduct Disclosure checks on staff; pupil numbers; pupil age range; details of teachers, including their qualifications and General Teaching Council registration number, if relevant; whether the school is to cater for children with special educational needs/additional support needs; details of the proposed curriculum and its delivery, including resources; details of the premises with plans of the facilities; fire certificates and evidence of compliance with health and safety requirements; and copies of child protection policies.
48. All respondents who answered this question agreed to the proposal. The examples given were seen to be fairly comprehensive and a useful basis. They would provide a way of seeking consistency. It was emphasised by one respondent that independent schools should be responsible for any costs incurred.
49. A few additional types of information were suggested. It was mentioned that procedures should be in place to ensure that the Disclosure Scotland requirements are fully implemented. It was also suggested that information on how the school would challenge discrimination and promote equality should be required. Additional information on proposals for social inclusion and disability were suggested as types of information that should be sought before registering a school. Financial viability was another type of information which was suggested should be requested and verified before a school can be registered.
50. It was mentioned that it would be important to have a cross reference with the information required for registration with the Care Commission, for consistency and to avoid duplication. A suggestion was put forward that there should be further consideration of how the two registration schemes would fit together.
51. One respondent felt that this proposal should be treated with some caution - they thought that some of the proposed requirements were vague or could be interpreted in an open-ended way. It was suggested that the information required should be divided into two lists: information that is essential before a school can be registered and information that can be provided at a later stage. Another respondent suggested more generally that the requirements for schools to provide information should not be used to impose unnecessary bureaucratic burdens.
Question 12 - Do you agree with the proposal to remove provisional registration and replace it with a power to set conditions on the operation of the school?
52. All but one respondent who answered this question agreed with the proposal. It was, however, highlighted that a system would need to be implemented that allowed a new school to be established before being judged on the same basis as long-established schools. There was a suggestion put forward that schools should receive notification of what is required for registration and then should be inspected to ensure this has been achieved. Clarification was sought on what the transitional arrangements would be for currently provisionally registered schools.
53. The respondent in disagreement with the proposals felt that some form of provisional or probationary period should remain. They felt it was very difficult to go straight to full registration and suggested that some information should be essential at the point of registration, while other information could be provided at a later date.
54. It was pointed out that no specific examples of conditions had been given in the consultation paper. There was also some concern about the new power to impose conditions on independent schools more generally. One respondent asked under what circumstances and for what type of situations these powers might be used. Where conditions are to be set, it was suggested the Care Commission should be consulted to ensure that no conflicting conditions would be set by the Commission for the same establishment.
Question 13 - Do you agree that Ministers should, in addition to the existing grounds, be able to refuse to register a school if they are not satisfied:
13.1 that the welfare of pupils will be adequately safeguarded and promoted; or
13.2 that efficient and suitable education will be provided?
55. Most of those who answered this question agreed with the proposal. It was suggested that the process for registering a school should also consider how well the schools would challenge discrimination and promote equal opportunities. It was also argued that independent schools should not be able to select pupils by ability and should accept all applications if they have places available.
56. In response to question 13.1, one respondent believed that Ministers should not be able to refuse registration if it relates to a school that also has to register with the Care Commission. It was contended that care and welfare are matters for the Care Commission to consider.
57. The terms 'efficient and suitable' were thought by some respondents to be both vague and subjective, requiring clear clarification.
Question 14 - Do you agree that the time specified for the managers to take the necessary action outlined in any notice of complaint should be appropriate to the circumstances and therefore potentially shorter than 6 months?
58. All respondents to this question agreed with the proposal that the time specified in a Notice of Complaint should depend on the problem identified and be appropriate to the circumstances. It was highlighted that pupils' school careers are relatively short and long delays in improving educational provision would be unacceptable and could have a detrimental effect on the children. One respondent answered "yes" for safety and welfare issues but thought that 6 months should be allowed for educational change.
59. One respondent felt that while 'potentially shorter than 6 months' was acceptable, it may not always prove realistic. Another pointed out that if the concerns related to welfare or care issues in a care service regulated by the Care Commission, duplication may occur if enforcement action were to be taken under the Regulation of Care (Scotland) Act 2001.
Question 15 - Do you agree that the Independent Schools Tribunal should be abolished and the route of appeal transferred to the Sheriff Principal?
60. The vast majority of respondents agreed with this proposal while a few were undecided. It was felt that the case for transferring the route of appeal to the Sheriff Principal had been well made in the consultation paper. One respondent asked why the Independent Schools Tribunal had not been used since the 1970s. Another felt that a right of appeal to the Sheriff in the case of independent schools would be sufficient and that this would be in keeping with appeals made under the Regulation of Care (Scotland) Act 2001.
Question 16 - Do you think it is appropriate to look at the individual(s) involved in running the school when considering whether the proprietor is a "proper person"?
61. All responses to this question accepted the proposal. One respondent suggested that teachers' qualifications, referees, personal histories and registration should also be looked at. It was generally agreed that individuals should be fully investigated. In addition, it was suggested that the Head Teacher's remit in McCrone would be useful in the considerations. It was stated that all teachers and staff should be subject to the Disclosure Scotland regulations.
62. It was pointed out that Ministers only have to be satisfied that the proprietor and teacher is a 'proper person', and it was queried as to why non-teaching and support staff were not covered in this section of the bill. There were also some reservations about the use of the term 'proper person' and there were a couple of suggested alternatives - 'fit person' and 'unsuitable person'. It was said that a clearer indication was needed as to what 'proper person' means.
63. There were also some comments on the use of the term 'proprietor'. The point was raised that it is rare nowadays for an independent school to have a proprietor, most having a Board of Governors.
Question 17 - What financial impact, if any, do you think these changes will have? It would be helpful if these could be split between one-off and ongoing costs, plus any evidence you have to explain your conclusions.
64. A similar response to question 6 was received. Several respondents felt that the implications may not be cost-neutral. It was felt that it would depend on the nature of the action to be taken to meet HMIE's recommendations. It was also commented that training needs and other staffing costs would be a financial pressure. Upgrades to premises was another issue specifically raised that would incur costs.
65. One respondent felt that more detailed registration requirements would need funding. There was a concern that independent schools might seek one-off costs from placing authorities in response to enhanced registration requirements.
66. Some respondents recognised that the proposed changes could be viewed as cost neutral as the expenditure related to actions that the school should have been doing anyway. It was stated that in the case of independent schools, the schools themselves should be responsible for meeting any costs, rather than the public money. The view that cost/finance should not be the issue as the protection, welfare and education of children was the priority was shared by a number of respondents.
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