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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

projects.

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 charity’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

school closures.

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)

tailored support.

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 “lower income households�.

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

whole.

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

selective schools.

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

their status.

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

signatures.

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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