Independent Schools Council » Politics

Admissions Conference 2011 – Equality Act technical issues

Melanie Strickland — Tue, 29 Mar 2011 09:13:04 +0000

This year’s admissions conference included much technical content (registrars and admissions staff have a lot to deal with – from complying with the professional Code of Practice for Schools, to the ever changing Tier 4 regime, to the Equality Act 2010). It’s the equality issue I wanted to focus on in this blog.

David Wolfe, barrister at Matrix Chambers, delivered a clear and concise presentation on equality law issues that can arise during the admissions process, with particular focus on disability. To quickly recap on where the law has got to: most of the Equality Act came into force in October 2010 – and at this date the previous anti discrimination legislation was repealed (including the Disability Discrimination Act, the Race Relations Act, the Sex Discrimination Act and other law). The Equality Act (and related Codes of Practice and guidance) is now a single stop shop for discrimination law (although note that the SEN framework as contained in Part 4 of the Education Act 1996 is unaffected).

Schools were reminded that equality law only protects children who have a protected characteristic – including disability, sex, race, religion or belief, gender reassignment, sexual orientation and pregnancy or maternity – age and marriage are also protected characteristics but it is not unlawful for schools to discriminate against pupils because of their age, or, bizarrely, because they are married. So, outside of the school context, a pupil who is discriminated against because he or she goes to an independent school is not protected from discrimination under the Equality Act, as going to an independent school is not a protected characteristic. Note that the position may be different under the European Convention of Human Rights, which includes different (and potentially wider) anti-discrimination provisions to the Equality Act definitions.

Explaining the law on disability discrimination, David reiterated that schools should always consider whether an applicant or pupil has a disability, because this triggers obligations under the Act (most importantly, the duty to make reasonable adjustments). Disabilities can sometimes be hidden – as in the case of cancer, or many mental impairments. A disability is defined as a long term physical/ mental impairment which has a substantial adverse effect on a person’s ability to carry out day to day activities. Long term means lasted or likely to last 12 months. Therefore, a person that has a broken leg is not going to be disabled within the meaning of the Act. Deciding whether a person with a mental impairment is disabled can be very tricky – eg. someone who is dyslexic may be disabled – it would depend on the nature and severity of their condition, the same could be said of someone with a depressive illness.

In the admissions context, schools need to make sure that they are not applying unjustified discriminatory criteria to applicants. Disability discrimination can be direct, indirect or discrimination can be related to someone’s disability. An example of discrimination related to someone’s disability is a school having a policy of not admitting applicants as pupils who need extra support in class. David’s central message was: think about what you are doing (and not doing), and think about why you are doing it. If it cannot be justified, as a ‘proportionate means of achieving a legitimate aim,’ it’s probably unlawful.

Schools were encouraged to adopt a ‘can do’ attitude and be open and supportive of people with disabilities. One way to do this is to encourage parents of applicants to discuss their learning needs with the school in advance so that it can consider what adjustments it can make. A school can also ask about reasonable adjustments it can make for applicants during the admissions process on its application form (note – this is not the position in the employment context). Making a reasonable adjustment during the entrance exam may include allowing an applicant some extra time to complete the test, or allowing them to sit the test in a separate room, or on a ground floor.

Schools can avoid falling foul of the disability provisions of the Equality Act by following this thought process in every case:

-      is the duty to make reasonable adjustments triggered? (is the pupil at a disadvantage?)
-      if yes, what reasonable steps could be taken to remove the disadvantage?
-      is it reasonable for the school to do that for this pupil?

‘Reasonableness’ is to be considered in light of a range of circumstance-specific factors – including the impact on the child, cost, the financial position of the school, the impact on other children, classroom organisation and health and safety. This means that what is a reasonable adjustment will vary from school to school and child to child.

The as-yet-not-in-force provision requiring schools to provide auxiliary aids and services as part of the reasonable adjustments duty was also discussed. Auxiliary aids and services are often referred to as ‘expensive’ adjustments, like hiring teaching assistants and providing specialist equipment like laptops. ISC is engaged in ongoing dialogue with the DfE about how and when this duty on schools will be implemented.

More Tier 4 confusion for schools

Matthew Burgess — Wed, 23 Mar 2011 11:06:30 +0000

Yesterday’s set of announcements by the Home Secretary and UKBA has generated considerable uncertainty and confusion for schools this morning. The consultation run by UKBA was focused on the Adult Student Visa route and sponsors of Adult Students. There were no proposals which would have affected the Child Student Visa route and sponsors of Child Students – the vast majority of schools.

Nowhere in the announcements, however, will you find any reference to Adult or Child students/sponsors, or even any acknowledgement that two distinct visa routes exist within Tier 4. Rather, the announcements are sweeping in scope, in particular the chilling phrase that “all sponsors … must become Highly Trusted Sponsors”.

So does this mean what it appears to mean? Has the Home Office backtracked on its previous assurance that “We propose no tightening of the Tier 4 (Child) route; this is a relatively small part of the Tier 4 composition and one which poses us least risk”? Do all schools now have to sign up to the Highly Trusted Sponsorship scheme and pay the annual £410 levy for the privilege?

I can provide some cautious reassurance to schools. In a telephone call with Jeremy Oppenheim this morning, he has indicated to me that the policy announcements relate only to Adult Student Visa sponsors. He has undertaken to confirm this in writing as soon as possible and to ensure that the forthcoming changes to the policy guidance (and more importantly the Immigration Rules, which constitute the law in this area) clearly distinguish, in a way that yesterday’s announcements did not, between Adult and Child sponsors.

So, for the moment, there is no need for undue concern. It appears that the Home Secretary’s comments yesterday that “our proposals protect … our leading independent schools” may well be broadly correct. It would be a seriously retrograde step if all schools were affected by changes which have as their stated target bogus colleges and bogus students.

Of course, other changes may well have a more indirect impact on schools: for example, the closing of the Post Study Work route will make a UK university education less attractive to some, and hence maybe a UK sixth form education less attractive also (since 4 out of 5 overseas pupils at ISC schools progress on to university in the UK). But the current focus must be clarifying the extent to which schools are faced with tighter regulation. I will update schools as soon as I have definitive advice from UKBA.

Students may fund school provision in university access u-turn

Kristen DiLemmo — Tue, 08 Mar 2011 12:39:04 +0000

This morning, Offa released guidance on university access that marked a sharp departure from their earlier observations on the subject. While Sir Martin Harris previously declared that universities treated applicants from both the maintained and independent sectors fairly and equally – as discussed in an earlier ISC blog – universities will now be expected to double the amount they spend on widening access programmes if they wish to charge the top rate of £9,000 in fees.

Concerns about aspects of Offa’s guidance will no doubt continue to be raised throughout the week by others, but lest it should be overlooked, there is a curiosity that is worth thinking about now. At the moment, universities earmark 85-90% of access funds for bursaries and scholarships. Offa recommends, however, that a greater proportion of funding should be diverted to school outreach programmes. Part of this procedure would entail hiring more staff to help pupils select the necessary A-Levels for any given university course.

The implications of this recommendation are rather surprising: rather than encouraging schools to provide information, advice, and guidance (IAG) to their pupils about degree courses and A-Level subject choice, Offa is now instructing universities to fill that role. Simultaneously, university funding cuts of £940m and the introduction of high fee levels are shifting the burden of higher education funding from the taxpayer to individual students. This means that the extra staffing costs for school-level IAG provision will be met with funding received directly from university students.

As responses to Offa’s report begin to flood in, it will be particularly interesting to see if this point garners much attention. The prospect of university students subsidising educational provision in lower-performing schools is undoubtedly one that could raise eyebrows.

UKBA finally releases consultation on Tier 4

Matthew Burgess — Tue, 07 Dec 2010 13:06:26 +0000

UKBA released its consultation on Tier 4 at midday today. Schools have been extremely concerned by the growing rhetoric that all student migration – including overseas pupils – will be dramatically reduced. Only yesterday, the Telegraph was reporting that “up to 100,000 foreign students will be barred from Britain every year” and that “only those wanting to study a degree will be handed a visa in a bid to slash migrant numbers and curb the bogus students or colleges that exploit the system”.

We have been more circumspect, commenting that noises coming out of the Home Office and UKBA at the highest level were indicating our message had landed. All students, and all educational sponsors, are not alike; independent schools and our pupil base represent minimal, even zero, immigration risk.

First analysis of the consultation document indicates that UKBA understands this. The consultation states, “We propose no tightening of the Tier 4 (Child) route; this is a relatively small part of the Tier 4 composition and one which poses us least risk”. Indeed, the consultation is peppered with qualifications, carefully distinguishing independent schools from the rest (see, for example, the section on “stricter accreditation procedures for education providers in the private sector” which takes pains to differentiate independent schools from others). We are delighted to see this recognition in print – our campaigning has not been in vain.

Appendix 1 has a handy summary of the current Tier 4 requirements, and the proposed reforms. Only two out of the ten proposals relate to Child Students. What’s more, one of these proposals is to preserve the status quo; and the second would actually improve the system dramatically for “lower risk students”, allowing them to self-declare maintenance and qualifications requirements. Given that most of the visa refusals for child students have been made (often incorrectly, or harshly) on these grounds, self-declaration of maintenance would be a vast improvement. Clearly, schools would continue to need to satisfy themselves that their applicants can afford the fees; but separating this prudent financial due diligence from the visa system can only be welcome.

There are other areas where we will push UKBA to go further than the status quo. Our goal is to lift all ISC schools out of the General Student visa route, with all the complications that brings, and accommodate all ISC schools and their overseas pupils within the Child Student visa. This means adapting the Child Student rules to allow them to deal with pupils who are over 18; the door is ajar, following a concession granted over the summer for extending pupils, and we will continue to push. And there are other changes which we will look for: a single visa to cover GCSE and A level study has long been sought, for example.

We will respond to the consultation by 31 January 2011, and have meetings scheduled with UKBA already to discuss their proposals face to face. Schools with significant overseas pupil numbers should also respond. But first impressions are overwhelmingly positive.

Coalition Caps

Matthew Burgess — Wed, 24 Nov 2010 12:33:09 +0000

This month has provided much fodder for immigration observers. Two major speeches by the Home Secretary; the release of a Home Affairs Select Committee Report; the much-awaited report from the Migration Advisory Committee. The question schools ask me is: what impact is it going to have on us? The answer to that depends on whether the Government has been listening to our message – and the signs are that it has.

My message to Government has been simple and straightforward. British independent schools are world-class institutions, providing education which is (almost) unparalleled in the world (OECD statisticians might quibble about South Korea and New Zealand). Overseas pupils want to come to British independent schools to benefit from that excellence. Their presence enriches our schools and our country, and not just financially. They are all children or very young adults coming to highly trusted educational foundations with a deep-seated culture which places the health, safety and wellbeing of each pupil at the heart of their offering. ISC independent schools are the paradigm “genuine institution”, our pupils exemplary students. They are, in fact, polar opposites of the “bogus colleges” and “economic migrants” which have become UKBA’s bogeymen.

I am confident that this message, repeated loudly and often to Ministers and officials, has landed. The Home Secretary, in her first speech this month, expressly said: “Let me make clear: I will do nothing to prevent those coming here to study degree level courses and I will protect our world class academic institutions above and below degree level.” This is key: previous speeches treated all institutions offering courses below degree courses – which by definition includes schools – as inherently suspect. In unpublished correspondence with ISC, the Immigration Minister gave similar assurances that the Government understands that independent schools are not to be lumped together with other sub-degree level providers. There was, he said, no intention to penalise independent schools. And yesterday, as the Home Secretary was making her statement to Parliament, UKBA was confirming to me that Child Students will be unaffected by any changes proposed in the consultation to be launched shortly.

As ever, the devil is in the detail and I have no doubt that we have work to do to ensure that independent schools suffer no collateral damage from the pending changes, as we have from the hasty introduction of Highly Trusted Status, compulsory language testing and a whole raft of other misjudged policies. We will also continue to press other messages: that pupils are not “net migrants” at all; they accrue no settlement rights whilst in school; they make no claims on public services or public funds; they are, in short, an asset to be cultivated, not a liability to be capped. But the battle to recognise the distinctive position of overseas pupils in our immigration system appears, for now, to be won.

“How to prevent poor children becoming poor adults” (Frank Field)

Manuela Winkelmann — Mon, 08 Nov 2010 12:26:27 +0000

Frank Field, the Government’s poverty tsar, is to call for schools to teach parenting as a theme within existing subjects such as science to help children understand why good parenting is important and what makes parenting good. He is quoted in the Guardian saying: “Being a parent, apart from running the army in Afghanistan, is the most important thing we will ask anyone to do and we assume people get the knowledge by osmosis – and they don’t.”

This presents a paradigm shift in the way the Government tries to tackle child poverty. The Labour Party made child poverty one of their big topics and dedicated vast funds to try and end child poverty by granting tax credits to families below the poverty line. The Conservatives stay on course, but appear to have taken a leaf out of Peter Saunders’ book.

Saunders spoke at the IFS event on child poverty earlier this year and argued that children from low income families do not underperform at school because their parents are poor, but because material poverty coincides with a wide range of social outcomes such as lone parenting, violence and substance abuse all of which in turn negatively effect children’s development. He argued that the behavioural circumstances of the child do not change because a family has more money.

These arguments were supported by findings which IFS’ Luke Sibieta presented at a Policy Exchange seminar on child poverty last month. Their analysis had shown that factors such as a stable bedtime routine, receiving regular meals and being read to are strongly correlated with children’s performance in cognitive tests. This prior attainment gap is sustained (and in some cases entrenched) throughout children’s education.

Given that the UK lags behind achieving its ambitious goal to eradicate child poverty by 2020 making sure that poor children receive the same parenting as their better off counterparts. While money is part of the story and a lack of it can be the root cause for many social problems Field says that other factors “are as important as money in determining outcomes: the interest you take in your children, how you bond with them, whether you read to them, the interest you show in what they are doing at school.”

This is an important step towards a more holistic approach to tackling child poverty and the attainment gap between children from different socio-economic backgrounds is an important step. It is so much about what resources you have available, but what you do with them.

What education policies are needed to combat poverty?

Manuela Winkelmann — Fri, 22 Oct 2010 08:58:48 +0000

The Field Review on Poverty and Life Chances which is currently gathering evidence has prompted Policy Exchange, a conservative think tank to follow in IFS’ footsteps and organise a seminar to review the evidence base and discuss policy implications.

Education has been identified as one of the main policy fields to create ways out of poverty and to increase intergenerational mobility. In this context looking at the attainment gap between children from higher and lower socio-economic backgrounds is as mandatory as criticising pushy middle-class parents for moving into good schools’ catchment areas and criticising Sure Start for mainly benefitting children from better off families. The underlying assumption is that children who are entitled to free school meals (FSM, the Government’s main indicator of deprivation) are outperformed by their middle class peers, because they receive an inferior education.

IFS’ Luke Sibieta offered a more differentiated view on the attainment gap when he presented findings from the analysis of the Millennium Cohort Study (MCS) which looked at children’s ability at the age of three and five and attempted to identify factors that would explain these differences. He found that the age of the mother at birth, the number of siblings as well as parental attitudes to education and factors such as regular bed times, being read to every day and being given regular meals in early stages explained a significant share of the children’s abilities. Analysing MCS data IFS also found that the mother’s average age at birth for children from lower socio-economic backgrounds is 25 years while the figure for children from higher socio-economic groups is 32. Children in lower income families on average have more siblings and are less likelt to have regular bed times, be read to every day and to be given regular meals.

This shows that the underperformance of children with FSM entitlement is due to the fact that poverty is strongly correlated to an array of factors that hinder a child’s progress before they enter formal education. Controlling for socio-economic factors such as household income IFS found that the home learning environment accounted for 16% of the gap in performance. The policy implications of these findings are significant, since it suggests that giving those parents more money as promoted by the Labour party cannot solve the problem, but that policies need to address the social factors associated with poverty such as family planning and the learning environment at home.

Data from the British Cohort Study (BCS) presented also showed that parental aspirations were not, as often suggested, part of the problem, but that parents from all socio-economic backgrounds and ethnicities had high aspirations for their children, hoped that their children would continue to attend school or college post 16 and go on to higher education. Especially at GCSE level children’s attitudes to education and whether they liked going to school were found to be more significant than their parents’ attitudes.

This shows that the debate should move away from condemning those who do well now and accusing them of “working the system” and move towards policies that encourage and enable all parents to create an environment which optimally supports their child’s development. The first step towards a rational and meaningful discussion is to stop blaming those whose children attend good schools and work towards lifting the standards in all other schools to ensure all children attend good schools.

A case for vouchers (but by any other name)

Kristen DiLemmo — Tue, 12 Oct 2010 10:15:17 +0000

The release of Lord Browne’s higher education review coincided with another proposal that garnered considerably less attention – for the moment, at least. Paul Collier, who spoke at Policy Exchange last night, is no stranger to having his ideas dismissed in the short term and quietly adopted a decade later.

The professor of development and globalisation economics at Oxford has shifted his sights to bridging the gap between private and state education in the UK. Prof Collier’s talk expanded on ideas he set forth in the Independent last January: if we assume that the quality of education is directly related to its cost, then the government should allow for a blended funding model that offers a wider range of choice and quality than our current, two-tiered system.

At the outset, Prof Collier emphasised the importance of separating education into two key dimensions: the mode of delivery, and the method of funding. He envisions the state delivering and funding more basic provision – specifically at nursery level – on a massive scale, with public involvement tapering off as education reaches the greater complexities of higher education (HE).

But the reality of education funding reveals a peculiarity that Prof Collier identifies as the cause of our two-tiered system: while nursery and HE funding are a blend of private and public money, the school age tier is the only one with a complete ban on blended funding. The consequence of this model is a radical split between his calculation of the average annual spend per child in the state system (£5,000) and in the private system (£15,000).

If we make the assumption that average-income households would like to contribute some money to a child’s education, the current model expressly forbids this contribution. It is no small irony, Prof Collier pointed out, that child benefit can go towards everything but a child’s education in the state system. One consequence of this absurdity is that parents who want to spend money on education often turn to catchment area chasing. Instead of channelling child benefit directly into the education system, the resource is wasted on the zero sum game of the property market while educational quality does not increase.

Should the ban on blended funding be lifted, however, the average spend per child would increase through a combination of reallocated public funding and increased parental contribution (via child benefit or private earnings). This is, of course, a relatively straightforward argument in favour of a school vouchers scheme, but Prof Collier steered well clear of a term so loaded with political and ideological baggage.

The talk proved an interesting examination of the economic logic (or illogic) underlying our current system. While the political and fiscal practicality of implementing such a scheme remains to be seen, a point of concern for our sector would arise in the soft guarantee of autonomy. Prof Collier implied that his notion of blended funding across the system does not include altering a school’s governance, but it is hard to believe that the state would be willing to channel money without attaching any strings. Likewise, accepting public funds could prove a gamble that many independent schools may be unwilling to make.

J.R. Brewing

Matthew Burgess — Fri, 08 Oct 2010 15:06:19 +0000

Yesterday, the High Court granted permission for ISC to pursue our judicial review of the Charity Commission’s public benefit guidance. Whilst this is excellent news, one might wonder why we needed to go to the effort (not to mention expense) of a day in court, just to get permission to have our day in court…

Judicial review is a particular type of legal proceeding, described by Her Majesty’s Court Service as “the procedure by which you can seek to challenge the decision, action or failure to act of a public body such as a government department or a local authority or other body exercising a public law function”. The claim for JR must be filed promptly and, in any event, not later than three months after the grounds upon which the claim is based first arose. The court has the power to extend the three month period but will only do so where it is satisfied there are very good reasons for doing so.

So, argued the Charity Commission, ISC is out of time: ISC is challenging the Commission’s guidance, which it published in instalments in 2008 (January and December) and the three month period elapsed early in 2009.

An open and shut case, you might think. Well, not quite.

First and foremost, the Commission’s argument presupposed that what we are challenging is a decision taken by the Commission at a single point in time: the decision to publish the guidance. But that is not at all what we are challenging. Our case is that the guidance is wrong. It’s just as wrong today as it was when it was published. And, under the Charities Act 2006, charity trustees are under a continuing statutory duty to pay regard to it.

There are other problems with the Commission’s analysis as well. Before we had seen how the Commission would interpret and implement its guidance, it was very difficult to know whether the errors in the guidance would be significant or not. The Commission took until July 2009 to publish its ‘public benefit assessments’ of five schools; many commentators, including ISC, were worried by what they saw.

Then there is the Attorney General’s reference, made only last week to the Charity Tribunal. His reference ensured that, come what may, questions of public benefit and independent schools are going to be judicially scrutinised. So arguing that our JR challenge was out of time is rather like rearranging deckchairs on the Titanic.

Finally of course there is the small matter of Dame Suzi Leather’s comments to Parliament last year that she would welcome a legal challenge. It’s hard to square that eagerness with the legal firepower assembled yesterday to try to avoid this one.

Some thoughts on IFS’ workshop on child poverty and children’s life chances

Manuela Winkelmann — Thu, 09 Sep 2010 09:30:09 +0000

This week’s IFS workshop brought together a wide range of speakers from Frank Field, MP and “poverty tsar”, to researchers from a number of charities who address child poverty and social scientists and psychologists, to Peter Saunders, who is perhaps the UK’s most controversial commentator on social mobility and the Child Poverty Act.

Frank Field opened the day highlighting the problems that Britain is faced with, granting the audience a few glimpses of his highly anticipated review on the same topic. Quoting Feinstein’s findings he discussed the impact poverty has on children’s life chances in the current education system and suggested that what schools are currently doing for children from poorer backgrounds was not good enough. Siding with Margaret Thatcher he said that poverty should no longer be an acceptable excuse for low attainment and that poorly performing schools are unacceptable. However, he also suggested that a paradigm shift was needed away from a never-ending succession of school reforms towards more early years interventions, explaining that research has shown that the first three years are very important for the brain’s development. Research from the US has shown that early intervention produces higher returns to investment, which will surely appeal to a cash-strapped government and might be a welcome reason to move away from the magnitude of Labour’s investment in schools, that have produced rather underwhelming results so far.

After a number of sessions looked at the reasons why families are in poverty and evaluated labour market policies and public services which are meant to provide a way out of poverty, Paul Gregg turned the focus back to the child and looked at social mobility in the UK. He showed that while schools in the UK have a slight equalising effect, this is not strong enough to overcome the differences stemming from the child’s upbringing which were observed at the age of 5. He also stressed the importance of early intervention and suggested that since the impact of the home (such as parents’ education and aspirations, the number of books in the home as well as socio-economic factors) is the most important for a child’s development, policy should target this area. He also suggested that the reason why social mobility in the UK is lower than in other countries is that wealth is distributed fairly unevenly. This gives parents very different incentives and resources to invest in their child’s education along with high payoffs for better education.

This suggests that unless the UK turns into Sweden, education will remain key to a child’s life chances in the UK. We’ll have to wait for the findings of Frank Field’s review, which is to be presented to the prime minister next week, to see how the recommendations will translate into policy; it appears likely, however, that the current Government will not stick to the level of funding that Labour had committed to schools and that the focus will instead move to early targeted intervention. This will make the existing 1010 partnerships that independent schools have built with schools in the maintained sector and the community they’re in such as the Southward Schools’ Learning partnership more valuable. These partnerships range from sharing facilities, activities, and summer schools to sharing educational best practice. As a result it is not only children in the independent sector who can benefit from the excellent academic track record of our schools; wider communities can also enjoy the benefits of top class facilities and inspired education.