Schools that work for everyone Government consultation | Stone King LLP response
Introduction Stone King has the benefit of having a top tier education practice within which we have many academy clients including some of the largest MATs in the country, an independent schools practice in which we act for a significant number of independent schools of all sizes, and a large faith sector practice. Given this, and the interest of our various clients in the consultation, we hosted three separate roundtable forum sessions to discuss the key issues raised for each sector in the Green Paper. We have brought those views together in this response to the consultation, in which we have set out responses per sub-sector, but also sought to set out the common themes arising from taking an overview across all three areas. Our response also takes into account views of the solicitors at Stone King, who not only regularly work with and advise clients across the sector, but many of whom are also charity trustees and governors in both the maintained and independent sectors. Overall, educators across the sectors felt strongly that what was important was ensuring that the focus was on what has been shown to have a positive impact on the outcomes for children, and that creating sustainable partnerships capable of delivering impact does not happen when there is prescription requiring schools to undertake particular projects, or requiring particular schools to work together. Instead of a punitive approach, there should be encouragement and advantages to be gained by schools which are able to demonstrate that they have made a positive difference for children through their initiatives or partnerships. It should facilitate collaboration and discussion between schools, helping them find ways to best work together to support one another, something for which there is much appetite across the board.
1. Independent Schools Q: WHAT CONTRIBUTION COULD THE BIGGEST AND MOST SUCCESSFUL INDEPENDENT SCHOOLS MAKE TO THE STATE SCHOOL SYSTEM? It should firstly be noted that there are inherent issues
best pupils from the state sector; rather, they would be
with this question. It is difficult to see a mechanism by
taking those who are the most deprived.
which schools could be labelled in this way. Size does not necessarily equate with profitability. Very small changes in pupil numbers can have a significant impact on budgets and margins. There may be reasons why one school appears to be cash rich or poor at any given time and is likely to be part of a complex picture,
Accordingly, this proposal provides up to 10,000 new ‘good’ school places for no additional cost to the Government. It finds places for children without the considerable costs of opening new schools. It also drives forward the social mobility agenda.
comprising matters such as the timing of capital
A number of independent schools were encouraged
to work and sponsor failing state-funded schools in
As to the way in which schools with capacity could make the most significant contribution to the government’s stated objective of creating more good school places, a proposal has been put forward by the Independent Schools Council that schools with spare capacity will offer their places to the government. This would operate on the basis that the school receives the standard state sector funding which would ordinarily run with the child, and the independent school making up the difference.
the mid to late 2000s. Some of these sponsorship arrangements have been very successful, including, as the Green Paper indicates, schools such as the London Academy of Excellence. However, there have also been a significant number of failed partnerships. Some of these reflect geography (schools too far away from each other), ethos and skills, among, no doubt, other factors. The grave concern now is that we would not wish to risk committing the same mistakes again. Any sponsorship requires much work and commitment from both sides to be effective – it is not and should
It is believed that 10,000 such places could be
never be viewed as being a tick box exercise to secure
facilitated, saving the Treasury an estimated £2,000
charitable tax reliefs, but is a serious undertaking and
per child. Such a saving could make a very significant
any proposed sponsorships going forward should be
impact. Some local authority funded pupils are already
very carefully scrutinised.
placed within independent schools, and this proposal could see this opportunity extended to thousands more. Even further savings could be possible if children who might otherwise be placed in social care were instead matched to an appropriate place in an independent boarding school. These proposals may avoid the need for costly new free schools. It is understood that the places would be on the basis of a means tested analysis, so that those benefitting would be from the most deprived families. Accordingly, it is factually incorrect that this would be a way in which independent schools ‘cream off’ the
In light of the above, for those schools which consider that they have the skills, capacity and drive to sponsor academy schools, it is generally felt that this is more likely to be successful where a group of different schools or organisations come together as cosponsors. In terms of partnerships generally, the most value can be added where schools are able to tailor their partnerships and collaborations to suit their local situation, needs and capabilities. This requires flexibility, trust, and mutual respect and understanding.
Q: ARE THERE OTHER WAYS IN WHICH INDEPENDENT SCHOOLS CAN SUPPORT MORE GOOD SCHOOL PLACES AND HELP CHILDREN OF ALL BACKGROUNDS TO SUCCEED? Independent schools currently provide support in a raft
providing resources such as bursar support, back office
of different ways including bursaries, extra-curricular
functions, collective purchasing, working on projects
activities, specialist teaching (e.g. classics), university
such as “Shine to Deliver” Saturday schools for gifted
preparation, soft skills training, leaders on boards of
and talented children, support in transport provision,
maintained sector schools and multi-academy trusts,
Q: ARE THESE THE RIGHT EXPECTATIONS TO APPLY TO ALL INDEPENDENT SCHOOLS TO ENSURE THEY DO MORE TO IMPROVE STATE EDUCATION LOCALLY? It is very important that a school is able to look at its
important from both sides that schools are able to
own capacity and skills (what it has to offer), what is
have a dialogue in which they can explore the ways
available locally, what the schools in the state sector
in which they may be able to support one another,
locally feel that they would benefit from, and work
without any prescriptive requirements being set for a
together to find a way to benefit the schools mutually.
partnership to have meaning and impact.
The independent sector is very mindful of the
Independent schools also recognise that they do not
extensive experience and expertise within the state
work within the same framework and with the same
sector, and recognises that local schools may neither
challenges as their many state sector colleagues. For
want nor need what it has to offer. This view is,
instance, the Ofsted framework and requirements
equally, shared by the maintained sector.
(e.g. around data tracking), and the specific
This has been reflected in the experience of many schools having offered particular services or opportunities which have been turned down by state sector counterparts (for good reason). It is incredibly
funding constraints, are a very significant aspect of management within the state sector, of which most independent schools have little or no knowledge or experience.
Q: WHAT THRESHOLD SHOULD WE APPLY TO CAPTURE THOSE INDEPENDENT SCHOOLS WHO HAVE THE CAPACITY TO SPONSOR OR SET UP A NEW SCHOOL OR OFFER FUNDED PLACES, AND TO EXEMPT THOSE THAT DO NOT? A threshold should not be set for the reasons set out
their regulator against the expectations set out in the
above. Independent school charities are required to
guidance in this regard.
report in detail on public benefit, and will be judged by Q: IS SETTING BENCHMARKS THE RIGHT WAY TO IMPLEMENT THESE REQUIREMENTS? No, for the reasons set out above. Q: SHOULD WE CONSIDER LEGISLATION TO ALLOW THE CHARITY COMMISSION TO REVISE ITS GUIDANCE, AND TO REMOVE THE BENEFITS ASSOCIATED WITH CHARITABLE STATUS FROM THOSE INDEPENDENT SCHOOLS WHICH DO NOT COMPLY? Last year, following the failed proposed amendment
In terms of reporting the Commission noted that it
to the Charities Bill to require independent schools to
would expect to see more detail on this in the Trustee
do more to meet the public benefit test, the Charity
Annual Report, and would encourage charitable
Commission stated that it is an important principle of
schools to consider what they are doing and how
charity law that trustees (governors of independent
they report in this area. The Commission intended to
schools) have the freedom to make decisions about
publish revised guidance, and ISC assured they would
how to carry out their legal duties in the appropriate
promote it to its members.
way for their charityâ€™s individual circumstances.
We do not consider that further legislation is required
The Commission said that whilst they did not wish to
or desirable at this stage. Rather, we consider that the
be prescriptive, there may be potential for more to be
existing provisions within the Charities Act 2011 suffice
done to encourage charitable independent schools to
and if further guidance is required, this can be issued
consider sharing facilities and other resources as part
by the Charity Commission following consultation in
of their responsibility to operate for the public benefit.
the usual way.
Q: ARE ANY OTHER CHANGES NECESSARY TO SECURE THE GOVERNMENT’S OBJECTIVES? Care would need to be taken with any significant
necessitated fee increases, this could well lead to
requirement on independent schools that this did
not alienate the existing parents, many of whom do struggle and make significant sacrifices to pay school fees. If they became alienated, and/or these changes
Any partnership work undertaken by independent schools costs the school, whether in terms of teacher or management time, travel, as well as financial costs.
2. Universities It was noted from the experience of various schools
However, it was equally noted that universities have
working with universities, that they operate in a very
acted over a number of years as sponsors of certain
different context, and as such are unlikely to have the
academies, and in particular have been successful
relevant expertise to be successful in running schools.
in engaging with University Technical Colleges. As
What they may be well placed to do is to provide
such, there was a desire to harness this effort and
support in areas such as helping pupils understand the
involvement from universities in the development of
admissions processes, and how to navigate them, what
schools going forward.
subjects are best to take them where they want to go, and in providing career advice.
3. Selective schools – expansion of
the grammar schools
There was considerable concern expressed during the
examinations which absolutely disadvantages those
course of our Forum events about the expansion of
who are unable to afford or otherwise secure such
the grammar school system. Most attendees at our
tutoring. Concern was also expressed about how to
events considered that the focus should remain on
identify those families who are “just about managing”.
making improvements to existing schools rather than
The current free school meal metric does not work, yet
introducing another new category which may, in turn,
it is otherwise difficult to identify who these people
simply lead to a dilution of effort and funding with the
might be. One route forward may be to allow existing,
current system. There was also a strong view that the
non-selective schools to introduce a grammar stream,
focus on the expansion of selection failed to addressed
essentially extending the current practice of identifying
issues such as funding shortages, very poor teaching
the most able students and ensuring that they receive
supply (both in terms of recruitment and retention)
and confused accountability, while there were also concerns expressed about the future of academisation reform.
There is a sense that there may be a lack of appreciation that grammar schools no longer encourage social mobility in the way that they did in
There is strong general support for social mobility, but
the past, and therefore expansion would not further
a concern that existing grammar schools have ceased
the social mobility agenda in the way it may be
to provide that opportunity. Rather, existing selective
anticipated. It is understood this may be reflected in
schools have seen a rise in tutoring for entrance
the research undertaken by the Sutton Trust.
Q: HOW SHOULD WE BEST SUPPORT EXISTING GRAMMARS TO EXPAND? As indicated above, it is not necessarily obvious that
the focus on the existing challenges within the state
expansion of the existing grammar school system is
funded sector. There are also significant concerns
the way forward in terms of addressing current issues
that the introduction of selection in an area may well
within the school system and there is a concern that
destabilise the education provision currently being
the grammar school initiative may come at the cost of
supplied by schools.
Accordingly, any decisions with regard to the
One possible way forward would be to create grammar
expansion of selective schools would need to be
streams within schools and these streams would have
taken very carefully with due consideration being
the ability to identify and cater for the needs of the
given to local demand and the impact upon other
most able pupils within each relevant cohort. This
schools within the area. It may be easier, for example,
would be much less divisive in terms of the provision of
to expand selection in those areas which are already
education locally and would we suggest, usefully build
subject to selection to a lesser or greater extent.
on existing models within the comprehensive sector. It would also be much more cost-effective.
Q: WHAT CAN WE DO TO SUPPORT THE CREATION OF WHOLLY OR PARTIALLY NEW SELECTIVE SCHOOLS? We are concerned that time, effort and funding should
We would in particular counsel caution with regard
not be unduly diverted from the existing priorities and
to the desire to establish new selective schools, but
initiatives within the maintained sector. Accordingly,
can see that the expansion of existing grammars and
it is to be hoped that a relatively neutral approach
introduction of selective streams within existing, non-
could be determined with regard to the provision of
selective schools would be possible.
additional new selective partially selective schools. Q: ARE THESE THE RIGHT CONDITIONS TO ENSURE THAT SELECTIVE SCHOOLS IMPROVE THE QUALITY OF NON-SELECTIVE PLACES? As we have indicated above, it is difficult to provide a
trust. There is good evidence to suggest that selective
clear test with regard to â€œlower income householdsâ€?.
schools within in a multi academy trust can perform
These are not, we would suggest, simply families
well: for example, King Edward VI Foundation Schools
entitled to free school meals but these should, rather,
in Birmingham sponsored many years ago King
have a broader range of criteria. We have considered
Edward VI Sheldon Heath Academy and the benefits
whether there could be tests adopted by the United
of this sponsorship have seen very much a two way
Nations with regard to the education of the mother,
street. Likewise, there are other multi academy trusts
but this, again, does not accurately and reliably reflect
which currently have selective schools within their
the circumstances of the families concerned. However,
trust, and this can provide a useful balancing of skills,
we welcome the focus on those families who would
opportunities and achievement across the trust as a
not otherwise be able to afford or facilitate extensive
preparation of their children for tests.
In terms of age of entry, there are already
We are not entirely sure how establishing primary
opportunities for children to join at different age
feeders would work, given that selective schools by the
ranges, most notably at 16. With regard to entry at
very nature do not have such primary feeder schools.
age 14, in principle we do not see a problem with this,
It is very difficult to see how a feeder relationship could
but, in practical terms, it may well prove difficult to
be created in these circumstances.
secure significant and meaningful participation from
We note the comments with regard to working with other schools and in particular, establishing a new non-selective secondary school or partnering with an existing non-selective school within a multi academy
non-selective schools, which would otherwise be faced with the possibility of losing some of their most able children at the age of 14 and the consequent threat that this would pose to GCSE results etc..
Q: ARE THERE OTHER CONDITIONS THAT WE SHOULD CONSIDER AS REQUIREMENTS FOR NEW OR EXPANDING SELECTIVE SCHOOLS, AND EXISTING NON-SELECTIVE SCHOOLS BECOMING SELECTIVE? The key test must be to be able to demonstrate
very clear cost-benefit analysis undertaken to support
demand for the school places and the risk of a
any decision to proceed with a new or expansion of an
negative impact on non-selective schools (and, indeed,
existing selective academy.
other selective schools) in the area. There must be a
Q: WHAT IS THE RIGHT PROPORTION OF CHILDREN FROM LOWER INCOME HOUSEHOLDS FOR NEW SELECTIVE SCHOOLS TO ADMIT? This question is clearly difficult to answer unless one
steps need to be taken to ensure that the proportion
has a full understanding of the likely tests which would
attending each school should at least reflect the local
be adapted to ascertain who might be considered to
demographic served by the school concerned? For
be from a lower income household. However, it would
schools in certain areas, therefore, this may require a
appear to us that the proportion must be sufficiently
much higher proportion of children drawn from lower
high degree to be meaningful. We understand that
income households. It might be possible to establish
the King Edward VI Foundation schools in Birmingham
a benchmark minimum with a requirement for schools
have recently introduced a 20% free school meal
to have regard to their local demographic when
criteria within their admissions criteria for their
establishing the relevant thresholds.
selective schools. Is this 20% is enough or do further Q: ARE THESE SANCTIONS THE RIGHT ONES TO APPLY TO SCHOOLS THAT FAIL TO MEET THE REQUIREMENTS? Certainly, it is important to ensure that selective schools comply with the requirements they have justified their ability to select. The usual way for compliance to be enforced for academies is through the funding agreement and we would consider that it would be possible simply to threaten breach of the additional grammar school requirements (which could form part of the funding agreement), and for any breach of these requirements to be recorded as a
breach of the funding agreement at the start. We are unclear as to how any form of suspension of the right to select by ability would work. This could lead to a very difficult position with regard to annual admissions processes and it is hard to see how this could effectively be implemented. Would one really have one year where there is no selection compared to other years where the cohort is fully selective?
Q: HOW CAN WE BEST ENSURE THAT NEW AND EXPANDING SELECTIVE SCHOOLS AND EXISTING NONSELECTIVE SCHOOLS BECOME SELECTIVE ARE LOCATED IN THE AREAS THAT NEED GOOD SCHOOL PLACES THE MOST? As indicated above, we consider that the location
This very much fits in to the demand – led approach
of any form of expansion of (whether way of new
adopted with regard to the expansion of pre-schools: a
provision or expansion of numbers at existing schools)
similar approach should be adopted here.
is critical to ensuring the success of the programme. Q: HOW CAN WE BEST ENSURE THAT THE BENEFITS OF EXISTING SELECTIVE SCHOOLS ARE BROUGHT TO BEAR ON LOCAL NON-SELECTIVE SCHOOLS? We note the proposals you have outlined within the
papers. Dealing with each in turn:-
outreach activity: this is certainly possible and something which is to be encouraged. However,
Encourage multi academy trusts to select within their
this can be a challenge, particularly for those
trust: we have seen examples of selection forming
schools which will not have a natural range of local
on part of a broader range of schools within multi
primary feeders: we have one client which takes
academy trusts. This can be helpful and we welcome
children from approximately 40 primary schools
the concept but this could be by way of a “virtual”
each year. However, we have no problem with the
centre of excellence – otherwise, this would be difficult
concept of selective schools being encouraged to
to achieve for those trusts which are anything other
work more closely with primary and other non-
than a very local provider of education. However, care
does need to be taken to ensure that selection does not become a means of removing able children from their existing provision with detrimental effects on the levels of attainment and achievement at upper schools within the multi academy trust.
Require existing selective schools to engage in
Fair admissions and access: we have covered this point elsewhere.
Q: SHOULD THE CONDITION TO INTEND TO APPLY TO NEW OR EXPANDING SELECTIVE SCHOOLS ALSO APPLY TO EXISTING SELECTIVE SCHOOLS? Existing selective academies are required to act in
Equally, however, we should be careful about imposing
accordance with the terms of the relevant Funding
additional requirements and conditions upon existing
Agreement while existing selective maintained schools
schools and consider how to legally stop it may be that
are required to act in accordance with education
some form of additional legislation will be required
legislations. It would certainly seem to be unfair in the
in dealing with the obligations on existing selective
medium term for new selective schools to be required
schools to undertake additional activities to justify
to follow one set of criteria while existing selective
schools are not placed under a similar obligation.
4. Faith Schools In general terms, the proposals with regard to the
secure until now given the requirement for the Catholic
removal of the 50% cap for the admission of children
Church to be able to demonstrate that its involvement
to faith free schools is welcomed and will permit, in
in education is promoting the catholic faith.
particular, Catholic Dioceses to be able to respond to the demand that they have for local Catholic school places, something which they have been unable to
With regard to the questions raised, we would comment as follows:
Q: ARE THESE THE RIGHT ALTERNATIVE REQUIREMENTS TO REPLACE THE 50% RULE? • Proof that there is demand for school places from parents of other faiths: While this is noted as a potential way forward, we consider that the requirement to obtain signatures
• Consider setting up mixed faith multi academy trusts, including becoming a sponsor for underperforming non faith schools: We consider this is a good idea, and there are many
in addition to undertaking local consultation is
examples at the moment of mixed faith and secular
onerous and disproportionate compared to other
trusts which are working well. It has been much
requirements with regard to consultation etc.
harder to facilitate such MATs within the context of
referred elsewhere within the Green Paper. As
Catholic schools, particularly given their voluntary
such, while we consider it would be appropriate
aided status and the consequent need to have a
to undertake consultation to provide evidence of
much greater involvement in governance. It would
demand, there should not be a requirement to obtain
be helpful if further steps could be taken to promote
such mixed MATs as a way forward. We are aware that some Catholic Bishops have concerns with
• Establish twinning arrangements with other schools not of their faith This is considered to be a good idea, and is
regard to the requirement to assume, as they see it, responsibility for the operation of a non-Catholic school in the case of the Catholic church, but we
welcomed, albeit that, as with the replies given in the
consider that, legally, there are no impediments
case of Independent Schools above, it must permit
with regard to the operation of non-faith schools by
arrangements which are appropriate and meet the
faith based MATs, provided that the governance etc.
needs of the schools within the local area concerned
arrangements are appropriately addressed.
and must not be seen as a requirement to act against the interests or wishes of the constituent parties concerned.
• Consider placing an independent member or
governing body comprised solely of representatives
director who is of a different faith or no faith at all
of the faith concerned. As such, while we consider
on the governing body of new faith free schools:
this to be a good idea, we are not necessarily sure
We would be surprised if this does not happen in any
that it is necessary to prescribe that this would be
event, since it can be difficult to secure an entirely
the case, since we would imagine that this would
faith-based governing body and, indeed, we do
happen in the ordinary course of events.
not consider that it is necessarily healthy to have a Q: ARE THERE OTHER WAYS IN WHICH WE CAN EFFECTIVELY MONITOR FAITH SCHOOLS FOR INTEGRATION AND HOLD THEM TO ACCOUNT FOR PERFORMANCE? Q: ARE THERE OTHER SANCTIONS WE COULD APPLY TO FAITH SCHOOLS THAT DO NOT MEET THIS REQUIREMENT? We agree that trusts should be monitored in terms of
We cannot see that is makes sense in other
compliance with their funding agreement and note the
circumstances to threaten to remove the faith status
proposals with regard to strengthening intervention
but that, rather, work should be undertaken to
powers where schools fail to meet expectations
bring the school in line with expectations, including
including in relation to uniform policy, food policy and
threatening to terminate the Funding Agreement
curriculum. We do not, however, consider that it is an
in event of failure and finding an alternative trust to
appropriate sanction for schools who do not meet this
assume responsibility for the operation of the school.
requirement to lose their right to admit on the basis of
The faith status of such a school should not be viewed
faith and become a non-faith school. Much will depend
as being an option which can be added and removed
upon the position with regard to the ownership of the
at will but, rather, should be seen as an integral part
site upon which the school is based, but if there are
of the operation of the school and, if the trust is felt
any restrictions with regard to ownership in favour of
to be failing, then steps should be taken to ensure and
the Diocese or Religious Order etc., then it would be
procure compliance by the trust with regard to the
impossible to remove the faith status from that school
operation of that school.
– rather, the school would simply need to be closed and an alternative site found for that school if it is felt the need for education continue to exist.
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Published on Apr 17, 2018