2005 Chapter 18

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     These Notes refer to the Education Act 2005 (c.18) which received Royal Assent on 7 April 2005

EDUCATION ACT 2005

     EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Education Act which received Royal Assent on 7 April 2005. They have been prepared by the Department for Education and Skills (DfES) in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

BACKGROUND

3.     In January 2004 the Government announced a package of education proposals aimed at simplifying the school improvement process, improving data flows and strengthening the accountability framework for schools.

4.     This was followed in February 2004 by the publication of Ofsted's consultation document, The Future of Inspection. The main proposals it contained were the introduction of shorter, more regular and less burdensome inspections based on the school's own cycle of planning and the alignment of inspections across the education sector.

5.     The two sets of proposals were brought together in a policy document, A New Relationship with Schools, published jointly by the Government and Ofsted in June 2004. This developed Ofsted's proposals for inspection reform following a broadly positive response to The Future of Inspection. It also set out accompanying changes for the new accountability framework, including the abolition of the requirement on schools to hold an annual parents' meeting and on the governors to produce an annual report; the introduction of a school profile; the simplified school improvement process; and improved data and information systems.

6.     In July 2004 the Department for Education and Skills published its Five Year Strategy for Children and Learners. This placed A New Relationship with Schools in context alongside other key reforms. Among these were the introduction of a guaranteed three-year budget for all schools from 2006 and the extension of the requirement on local education authorities to invite proposals from a variety of promoters where a new or replacement school is needed.

7.     This Act makes provision for the necessary legislative changes for these reforms. It also makes provision for extending the remit of the Teacher Training Agency (TTA) and includes a number of miscellaneous provisions: for enforcing the attendance of excluded children at alternative educational provision; for the provision and funding of limited higher education in maintained schools; for restrictions to be placed on the disposal of land by foundation schools; and for local education authorities in England to set annual targets.

8.     The provisions in this Act should be viewed as part of a broader package of changes set out in detail in the policy document, A New Relationship with Schools. Many of these changes do not require legislation.

SUMMARY AND OVERVIEW

9.     This Act is divided into five Parts.

10.     Part 1 (including Schedules 1 to 9) repeals the School Inspections Act 1996 and re-enacts many of the Act's provisions, with some significant changes. It reforms school inspections in England in line with the introduction of a new system of more regular, lighter touch inspections, and it gives the National Assembly for Wales the power to introduce similar reforms in the future. It revises the current categorisation for schools causing concern, introducing a new designation of requiring significant improvement, and removes the duty on schools in England to provide an action plan. It aligns the inspection of early years provision with school inspections, and also includes a number of Wales-only provisions: for the inspection of careers services in Wales; for the Assembly to establish an advisory board; and for the Assembly to provide advice on the appointment of the Chief Inspector for Wales.

11.     Part 2 (including Schedules 10 to 12) extends the circumstances in which a local education authority must invite proposals for a new or replacement secondary school. This Part applies to England and Wales.

12.     Part 3 (including Schedules 13 to 15) broadens the objectives of the Teacher Training Agency so that it may carry out activities in relation to the whole school workforce, not just in relation to teaching. The provisions in this Part also rationalise the functions of the Agency that are currently provided under various pieces of primary and secondary legislation, and ensure that the Agency will have appropriate powers to take on new roles in the provision of training and development for the school workforce.

13.     Part 4 (including Schedules 16 to 18) contains a number of miscellaneous provisions relating to maintained schools, information sharing, and attendance for excluded pupils at alternative educational provision.

14.     In relation to maintained schools, Part 4 provides for schools to adjust their accounting period from financial year to academic year; for the introduction of a guaranteed 3-year budget for schools; for the delegation of powers from the Secretary of State to school forums enabling them to agree proposals from local education authorities in England for variations in central expenditure limits as part of the local setting of school budgets; and allows for similar provisions for Wales to be enacted by order of the National Assembly for Wales should it wish to do so at a later date.

15.     Part 4 also provides for local education authorities to set annual targets for pupil performance; for the removal of the requirement on schools to produce an annual governors' report and to hold an annual parents meeting, and the introduction of the school profile in England only; for limited courses of higher education to be provided and funded in maintained schools; for admission arrangements to make special provision for children who are looked after by local authorities; and for safeguards to apply to the disposal of publicly-funded, foundation school land.

16.     In relation to information, Part 4 provides for data to be shared between the Department for Education and Skills and Inland Revenue and the Department for Work and Pensions for the purpose of verifying information provided in applications for education maintenance allowances, as a means of reducing fraud; for data to be shared between the Department for Education and Skills and Inland Revenue and the Department for Work and Pensions for the purpose of improving the administration of free school lunches, etc; and for the collection of data on individual teachers and support staff to be held on a school workforce database for statistical, research and other purposes.

17.     In relation to attendance at alternative educational provision, Part 4 brings the power of governing bodies to direct excluded children to attend alternative provision in line with those for other children, and extends the fixed penalty notice system to the parents of such children.

18.     Part 5 (including Schedule 19) contains general incidental and supplemental provisions including those relating to the functions of the National Assembly for Wales, subordinate legislation, general interpretation, repeals, commencement and extent.

TERRITORIAL EXTENT

19.     This Act extends to England and Wales only, with the exception of sections 108 and 109 and certain general provisions contained in Part 5, which extend to the whole of the United Kingdom.

TERRITORIAL APPLICATION: WALES

20.     Part 1 on inspections applies to England and Wales; Part 2 applies to England only, with the exception of sections 68, 69, 70 and 71, which apply to England and Wales; and Part 3 applies to England and Wales. In relation to Part 4, provisions relating to the funding of maintained schools; the provision and funding of higher education in maintained schools; admission arrangements; restrictions on disposal of land; the supply of information in relation to free school lunches; the supply of information about the school workforce; and attendance at alternative educational provision apply to England and Wales. Provisions on LEA targets and on school profiles apply to England only. Provisions on the supply of information in relation to education maintenance allowances apply to the whole of the United Kingdom. Territorial application is set out in more detail at Annex B.

COMMENTARY

PART 1: SCHOOL INSPECTIONS AND OTHER INSPECTIONS BY SCHOOL INSPECTORS

21.     The following definitions are used in these notes in relation to Part 1:

     *     SIA 1996 is the School Inspections Act 1996

     *     HMI means Her Majesty's Inspectors of Schools

     *     The Assembly means the National Assembly for Wales

*     Estyn is the office of Her Majesty's Chief Inspector of Education and Training in Wales

Chapter 1 - School Inspectors and School Inspections: England

Section 1: Her Majesty's Inspectorate of Schools in England

22.     This section re-enacts section 1 of and Schedule 1 to SIA 1996 (which is repealed by section 60) without any changes. It establishes the office of Her Majesty's Chief Inspector of Schools (subsequently referred to as the Chief Inspector) as a Crown appointment, and provides for HMI to be members of the Chief Inspector's staff. It also sets out the terms of his appointment as being one of no more than five years in any one term, though a previous post-holder is not barred from reappointment.

Schedule 1: Her Majesty's Chief Inspector of Schools in England

23.     Schedule 1 to SIA 1996 is re-enacted with changes, giving the Chief Inspector the authority to appoint staff in addition to HMI. The Chief Inspector may also arrange for additional inspectors to assist him in carrying out his functions. Paragraph 5 of Schedule 1 to the Act provides that, subject to the following exceptions, any of the functions of the Chief Inspector under this Act or any other Act may be fulfilled by: any HMI; any other member of his staff; or any additional inspector. The exceptions are that a report concluding that special measures are required must be personally authorised by the Chief Inspector or an HMI specifically authorised to do so and that an additional inspector cannot take part in an inspection unsupervised by an HMI unless he has previously conducted an inspection to the satisfaction of an HMI.

24.     The Schedule also provides that the Secretary of State will determine the remuneration and pension of the Chief Inspector, with the approval of the Minister for the Civil Service.

25.     Paragraph 2 provides for the appointment of additional inspectors to assist the Chief Inspector, as at present. Additional inspectors with specific skills or knowledge for a particular setting will continue to be used. In addition, the Chief Inspector will use additional inspectors to fulfil his duties under section 5. Where the Chief Inspector engages additional inspectors either directly or through an inspection service provider he must ensure that they have the necessary qualifications, experience and skills. He will fulfil this duty by publishing a statement of the qualifications and experience, standards and skills which such additional inspectors are required to have and shall ensure that any arrangements he makes with inspection service providers require that they ensure that additional inspectors meet the published requirements. Where using an inspection service provider he must also publish a list of names given to him by the inspection service provider of persons who may be used in future as additional inspectors. This will lead to an increase in the use of additional inspectors.

Section 2: Functions of Her Majesty's Chief Inspector of Schools in England

26.     This section re-enacts section 2(1) to (6) of SIA 1996, with the exception of the duty on the Chief Inspector to maintain a register of inspectors and the regulatory duties related to the system of inspection by registered inspectors.

27.     Subsection (1) adds four further elements to the matters listed in SIA 1996 section 2(1) about which the Chief Inspector must keep the Secretary of State informed. These are:

i)     the extent to which the education provided by schools in England meets the needs of the range of pupils (subsection (1)(b));

ii)     the contribution made by schools in England to the well-being of their pupils (subsection (1)(f)). Well-being is defined in section 11 having regard to the matters mentioned in section 10(2) of the Children Act 2004, namely:

          a)     physical and mental health and emotional well-being;

          b)     protection from harm and neglect;

          c)     education, training and recreation;

          d)     the contribution made by them to society;

          e)     social and economic well-being;

          iii)      the extent to which schools in England are developing rigorous                 internal procedures of self-evaluation; and

          iv) the behaviour and attendance of pupils at schools in England.

Section 3: Annual and other reports to Secretary of State

28.     This section re-enacts section 2(7) of SIA 1996 without any changes. It requires the Chief Inspector to make an annual report to the Secretary of State, who in turn must lay this report before Parliament. It gives the Chief Inspector authority to publish any report made by him under this section in whatever manner he sees fit.

Section 4: Powers of entry etc. for purposes of section 2

29.     This section re-enacts section 2(8) to (10) of SIA 1996, updating some of the terms used but without any changes to the effect of the provisions in that section. It gives the Chief Inspector rights of entry to any school in England, and to other premises related to the education of pupils, to undertake the duties placed on him under section 2. It includes the right to inspect and take copies of relevant documentation. Under subsection (3) it is an offence intentionally to obstruct the Chief Inspector in carrying out his duties. Subsection (4) specifies the penalty for this offence.

Section 5: Duty to inspect certain schools at prescribed intervals

30.     This section requires all schools previously covered by section 10 of SIA 1996 to be inspected at intervals to be prescribed in regulations. Section 10 of that Act requires the inspection of those schools to be carried out by a registered inspector; however section 60 repeals the SIA 1996, thereby removing the requirement for registered inspectors in England. This section transfers the responsibility for inspecting every school in England to the Chief Inspector. By virtue of paragraph 5 of Schedule 1 the inspections and the exercise of any functions required in administering and delivering them may be carried out by HMI, any additional inspector or any other member of the Chief Inspector's staff in the name of the Chief Inspector.

31.     Subsection (5) requires inspection reports to cover the same four areas currently covered by reports under section 10 of SIA 1996, with the addition, in subsection (5)(b), of how far the education provided meets the needs of the range of pupils and in subsection (5)(f) of the contribution made by the school to the well-being of its pupils.

Section 6: Duty to notify parents of section 5 inspection

32.     This section re-enacts with modifications paragraph 6 of Schedule 3 to SIA 1996. The section carries forward the requirement for the governing body (or in certain circumstances the local education authority) or the proprietor of a school to take reasonable steps to notify all parents of all registered pupils at the school and such other persons as may be prescribed in regulations of the time of the inspection and to invite their views on matters relating to the school. It does not carry forward the further requirement that the school arrange a meeting between parents and the inspectors; this is likely to be impractical given the intention to reduce notice of inspections.

Section 7: Duty to have regard to views of certain persons

33.     This section provides that in conducting a section 5 inspection the Chief Inspector must, among other things, have regard to the views of the head teacher; the governing body or proprietor; staff; pupils; parents; and any persons notified of the inspection, where those views are expressed.

Section 8: Inspection at discretion of Chief Inspector

34.     This section replaces section 3(1) of SIA 1996 and gives the Chief Inspector the power to inspect any school at any time, even when not under a duty to do so under section 2(2)(b) or section 5. This allows the Chief Inspector to inspect any school where he may have cause for concern in respect of his general duty under section 2. It also enables the Chief Inspector to conduct inspections for a range of purposes, including monitoring visits by HMI to schools in special measures, visits to schools to aid him in keeping the Secretary of State informed under section 2, or to contribute to reports on, for example, the teaching in a single curriculum subject.

Section 9: Power of Chief Inspector to treat discretionary inspection as section 5 inspection

35.     This section enables the Chief Inspector to treat an inspection conducted under his own power (section 8) or at the request of the Secretary of State (section 2(2)(b)) as though it were a section 5 inspection. This will mainly be used so that a school which is inspected, for whatever reason, under one of these other arrangements, does not have to have another inspection within the interval prescribed under section 5(1).

36.     Where an inspection is deemed a section 5 inspection using this power, the section requires a written report to be made and the school to make the report available to parents in the usual way (see notes on section 6 and section 14).

Section 10: Power of entry etc. for purposes of inspection under section 5 or 8

37.     This section replaces the powers of entry conferred by section 3(3) of, and paragraph 7 of Schedule 3 to, SIA 1996. It provides for rights of entry into schools and other premises for the Chief Inspector and those assisting him, such as HMI and additional inspectors. As in SIA 1996, the section provides that it is an offence, punishable by a fine, intentionally to obstruct the Chief Inspector in the conduct of an inspection under section 5 or 8.

Section 11: Publication of inspection reports

38.     This section allows the Chief Inspector to publish any inspection report, and to do so by electronic means.

Chapter 2 - Procedure for Inspections under Chapter 1

Section 13: Duties of Chief Inspector where school causes or has caused concern

39.     This section covers circumstances where a school which has been inspected under section 5 is judged by the Chief Inspector to require either special measures or significant improvement (see notes on Chapter 5: schools causing concern); or cases where such a designation is already in place and the judgement is that it should be changed or removed. The section re-enacts section 14 of SIA 1996 as it applies to England, but reflecting the new significant improvement category, removing the requirement for inspectors to produce a summary of their inspection reports, and introducing a review procedure. The section also re-enacts section 16A of SIA 1996 as it applies to England, with changes to terminology as set out at section 44, and to the arrangements for notifying the local education authority when a maintained school receives a designation.

40.     Subsections (1), (2) and (3) provide that where an inspection of a maintained school identifies that the school requires significant improvement or special measures, the Chief Inspector must send a draft of the report to the governing body in the case of a maintained school and to the proprietor in the case of any other school and to consider any comments made by them within a set period. If the Chief Inspector is still of the opinion that the school requires significant improvement or special measures he must inform the Secretary of State and the local education authority in the case of a maintained school or the proprietor in any other case of this immediately in writing. He must also state that opinion in a report of the inspection. Thus, in the case of maintained schools, the local education authority will in future receive such notification direct from the Chief Inspector, rather than as at present from the Secretary of State.

41.     Under subsection (4), where in the previous report of an inspection the school was designated as requiring special measures, but the Chief Inspector is now of the opinion that the school no longer requires special measures, he must state his opinion in a report. If he considers that a designation of significant improvement rather than special measures is appropriate, he must also state his opinion in the report, as required by subsection (3).

42.     Under subsection (5), in the case of a school already designated as requiring significant improvement, if the Chief Inspector is of the opinion that neither a significant improvement nor a special measures designation is required, he must state his opinion in the report.

Section 14: Destination of reports: maintained schools

43.     This section re-enacts the elements of section 16 of SIA 1996 relating to the destination of reports for all maintained schools, as they apply to England, but removing the requirement for inspectors to send summary reports. It specifies the persons to whom the inspector must send a copy of an inspection report following either a section 5 inspection or following any inspection of a maintained school. The requirements in section 16 of SIA 1996 relating to special measures are now included as part of section 13 (see above).

44.     Subsection (4) requires the appropriate authority (defined in section 18) to make a copy of all inspection reports it receives available for public inspection, to provide a copy to anyone who asks for one, and to make arrangements for parents of pupils at the school to receive a copy of the report.

Section 15: Measures to be taken by local education authority

45.     This section re-enacts section 17(1) to (3) of SIA 1996, modified to reflect the new arrangements for the revised categories of schools causing concern defined in sections 44 and 46 and Schedule 5.

46.     Subsections (2) and (3) place a duty on local education authorities to prepare a written statement of the action they propose to take, and the timetable for this action, when a school is judged to require special measures or significant improvement. The deadline for local education authorities to produce their action statements will be prescribed in regulations; the intention is that this will be 10 working days from the publication of the inspection report, but the Secretary of State may require a shorter period in urgent cases. Where the local education authority propose to take no action in response to the inspection report, their statement must set out their reasons for not doing so. The local education authority are required to send their statement to the Secretary of State, the Chief Inspector and the appointing body of foundation governors in the case of a voluntary-aided school.

Section 16: Destination of reports: non-maintained schools

47.     This section re-enacts the elements of section 20 of SIA 1996 relating to the destination of reports for all non-maintained schools, as they apply to England, with the changes to terminology set out in section 44. This covers the distribution of reports of section 5 inspections for Academies, city technology colleges, city colleges for the technology of the arts and non-maintained special schools. These reports must be sent to the proprietor of the school. The requirements in section 20 of SIA 1996 relating to schools requiring special measures are now included as part of section 13 (see above).

48.     Subsection (2) places a duty on the proprietor of a non-maintained special school to send a copy of the report to any local education authority which is paying fees for pupils at that school.

49.     Subsection (3) requires the proprietor to make a copy of all inspection reports it receives available for public inspection, to provide a copy to anyone who asks for one, and to make arrangements for parents of pupils at the school to receive a copy of the report. This mirrors the duty in section 14 on the local education authority or other appropriate authority in relation to reports on maintained schools.