Minutes of Evidence 12 September 2002
Thursday 12 September 2002
MINUTES OF EVIDENCE
Education and Libraries Bill:
Mr Gibson (Acting Chairperson)
Mrs E Bell
Mr K Robinson
Ms J Ingram )
Ms I Murphy ) Department of Education
Mr J Leonard )
The Acting Chairperson: I welcome Ms June Ingram, Ms Irene Murphy and Mr John Leonard from the Department of Education to this morning’s Committee session. The officials will give the Committee a briefing on clauses 18, 19, 20 and 31 of the Education and Libraries Bill, and Members will have an opportunity to ask questions.
Ms Ingram: There are two parts to clause 18. First, it provides for independent admissions appeal tribunals to continue to be heard in private. The other part amends existing provisions requiring boards to make payments for travel or subsistence allowances to members of an admission appeal tribunal in conditions, and at such rates, as the board may determine. These will be approved by the Department — as opposed to "as determined by the Department".
The Acting Chairperson: Do tribunals usually take place in private?
Mr Leonard: Yes.
The Acting Chairperson: Why is it necessary to legislate for that?
Mr Leonard: It has always been in the Regulations, but on advice from the Examiner of Statutory Rules the Department thought that it would be better to have the power in the primary legislation, which has been the situation in England and Wales since 1996.
The Acting Chairperson: Have the Regulations been laid before the Assembly?
Mr Leonard: The Regulations are made under the Education (Northern Ireland) Order 1997.
The Acting Chairperson: I am aware that the primary legislation cedes these Regulations, but do you deem it necessary for the Regulations to be laid before the Assembly?
Mr Leonard: The Regulations are already in place under the Education (Northern Ireland) Order 1997.
The Acting Chairperson: I apologise for my ignorance.
Mrs E Bell: Human rights issues must be associated with public and private tribunals. Has this been considered?
Mr Leonard: That has been taken into account. Sensitive matters, such as family and medical issues, are brought forward at these appeals, and there are good reasons for the tribunals being held in private.
Mrs E Bell: I have been involved in tribunals, so I understand and have no problem with that. However, a human rights group might say that tribunals should be transparent and open. Is that possibility adequately covered in the Bill?
Ms Ingram: We are aware of the principle that the tribunal should, where possible, be held in public.
The Acting Chairperson: Is it necessary for all the tribunals to sit in private? I understand that some of the issues are sensitive and delicate, but does that apply to all the issues?
Mr Leonard: Usually the tribunal is hearing reasons why a school has refused admission to a child. Parents put forward their case for that decision to be overturned, and that usually contains information on family and medical circumstances. Therefore, most appeals involve information of a sensitive nature.
Mr Gallagher: I appreciate that there are occasions when there is some sensitive information. However, many parents feel that one of the biggest problems is the secrecy surrounding appeals. Parents do not know the personnel involved, or anything about the appeal’s format, and I am concerned that there is too much secrecy. There is a difference between sensitive information and the secretive way that the appeals are conducted, and I favour more openness. Except when the tribunal chairperson judges that part of the proceedings should take place in camera or committee, there should be a facility for the public to attend if they so wish. Not many will, but I would like to see an amendment to the way that tribunals have been conducted up to now.
There is much discontent around these appeals, both from the children involved and the schools awaiting decisions, and the current time frame seems to be loose. Boards have the ultimate responsibility for ensuring that appeals are heard, but there is no date by which they must be heard. That is unsatisfactory for the schools, the children and their parents who are waiting week after week. Is it possible to include a time frame in which these appeals must take place in the legislation?
Mr Leonard: The current legislation gives boards the power to make arrangements for the appeals, which is done within a tight timetable. Pupils return to school on 1 September, and when parents are notified of their school placement at the beginning of June, there is a three-month period for the appeal process to take place. After 1 June, there is usually a two- to three-week period when parents must give notice of their intention to appeal. After that, boards know how many appeals they are dealing with and have the appeals procedures in place towards the end of June and July, when most of the appeal tribunals sit. There is already a carefully timetabled procedure for appeals.
Mr Gallagher: I do not see that working. At least two people have come to me about appeals that dragged into the middle of August. I cannot quote the cases, but one of the dates ended up being after 19 August, which is too late and unsatisfactory from everyone’s point of view. Is the timetable in the legislation, as it is not in practice on the ground?
Mr Leonard: A broad open enrolment timetable, which includes the procedure for dealing with appeals, is sent to schools every year. Boards are constrained by the time they have to hear the appeals. Some may drag into August for good reasons, such as trying to establish an appeal tribunal. The vast majority of appeals are held in June or July.
Mr Gallagher: They all should be held then, and the legislation should ensure that.
The Acting Chairperson: A predictable reaction time should be included in legislation.
I want to push you a little on the point of the legislation favouring tribunals being held in private. I would always want them held in public, unless there were burning issues forcing them to be held privately. Can you prove to me that the burden of evidence should be for private hearings?
Mrs E Bell: I have been quite heavily involved in tribunals, and share Tommy Gallagher’s concern. Although I appreciate Mr Leonard’s point about timetabling, if possible it should be included more explicitly in the legislation so that people are aware of the timescales.
One of my concerns is that many people will not actually appeal if the hearing is automatically in public. Everybody here probably has knowledge of cases, and I know of several cases where parents would not want the circumstances to be heard at a public tribunal. Although in principle hearings should be in public, we should allow private hearings if necessary.
The problem as I see it, and I agree with Mr Gallagher here, is that the procedure is not really here, and parents really do not know what to expect. People have asked me what they should do about various problems — my child wanted into this school, my child had a good reason for failing the 11 plus, or my child should have really had an ‘A’ but actually ended up with a ‘D’ because of the circumstances of the day. These problems are not really covered in the legislation, and if all that has been taken into account, what Mr Gallagher is saying is quite right.
There should be some rationale for these tribunals so that children and parents know what to expect. On hearings in public or private, I have reservations about them all being heard in public. The principle is that they should be in public if possible, so that people know what is happening. However, they should be private if the parent does not wish it to happen in public.
Mr Leonard: Some very delicate information comes forward at the appeals.
The Acting Chairperson: Clause 18(2) and (3) changes subsistence payments from the Department to the boards. Does that mean that every board can fix its own rate? I would want a higher mileage rate for the west of the Province, so would it not be safer to have a standard rate?
Mr Leonard: The rate is determined by the board and approved by the Department. There is an approval role.
The Acting Chairperson: Is this a convoluted way of saying it is a fixed rate?
Mr Leonard: At present the Department has determined the rates that all boards apply.
The Acting Chairperson: I presume the rate is fixed fairly at a nominal rate, so why bring the boards in to complicate it?
Ms Ingram: There is a general principle of delegating more to the boards, which is reflected in other provisions, and this is really a read across.
The Acting Chairperson: I am just trying to avoid the situation where the west would be penalised with 5p a mile, and the opulent, luxurious east would get something like 50p a mile?
Mrs E Bell: I am just wary about giving any more approvals to the Department.
The Acting Chairperson: This will obviously be more bureaucratic, so will it be cost-effective?
Mr Leonard: This change is part of a general move to delegate from the Department to the boards.
Mrs E Bell: Yes, but it then has to be referred back again.
The Acting Chairperson: Before I get my mileage somebody in the Western Education and Library Board has to stamp my card, and then it has to go up to the Department. The Department posts it back and then someone in the board checks to see if it is correct. If it is wrong, somebody has to give the approval of the board to make the correction. It then has to go back to the Department and be returned to the board again. By the time I get the money Christmas is over.
Ms Ingram: We will not be looking at the travel claims as such.
The Acting Chairperson: I am thinking of some poor innocent struggling out of the heart of the Sperrins to attend a tribunal. Money, even though it may be a small amount, is crucial to them, and the speed at which they are reimbursed matters. They have paid for this in advance.
Ms Ingram: We will want to take consistency into account.
Clause 19 provides for parents to express, in order of preference, on a single application form, the schools in which they wish pre-school education to be provided for the child. It is designed to remove the significant administrative problems that arise from the current system of multiple applications.
Mrs E Bell: I would welcome that. Schools anticipate an intake because of people making applications. Perhaps it is wrong for the school to make assumptions, but they do, and it then transpires that the child went to another school. Will the boards require extra funding to carry out the changes, or will it be in their budget allocation?
Ms Ingram: The boards have raised the question of resources, and we will discuss that with them.
The Acting Chairperson: The Southern Education and Library Board said that they wanted more time, so should we amend the legislation to give more time to introduce the system?
Ms Ingram: We will keep an eye on that as the Bill progresses.
The Acting Chairperson: The burning question is consultation with the boards. We noted the Southern Board’s comment, but you have consulted other boards. Are you happy that the timescale can be implemented, and is the legislation practical?
Ms Ingram: Concerns have been raised about the practicability of the timetable in the context of the progress of the Bill. We will keep a close eye on that as the Bill progresses and, if necessary, we will amend the Bill in order to delay the introduction.
The Acting Chairperson: Will the boards be funded for this, or is there an allowance already in the budget?
Ms Ingram: Currently, there is nothing specific in the budget. However, we will discuss resources for implementation with the boards.
The Acting Chairperson: Can you guarantee consistency across all boards? The issue has been raised of one board being more favourable to a certain condition, so how do we ensure consistency across the boards?
Mr Leonard: The boards are careful about other open enrolment issues, such as primary and post-primary, and the same will apply to pre-schools. All the board transfer officers will get together and ensure that the arrangements are uniform across Northern Ireland.
Mr McLaughlin: Is that a voluntary arrangement, or is it covered by Regulation?
Mr Leonard: It is a voluntary arrangement. It is in their own interest to ensure total consistency because parents apply across board boundaries to different schools.
Mr McLaughlin: Has that consistency been delivered in practice?
Mr Leonard: It has been delivered since the introduction of open enrolment.
The Acting Chairperson: Is the role of the board of governors affected?
Mr Leonard: That role remains unchanged. The board of governors remain the key authority in admissions decisions, and education and library boards act as a clearing house to facilitate school preferences. The schools decide admissions based on their criteria.
The Acting Chairperson: Why should a parent be asked to give reasons for their choice? The choice of a school is a private, domestic matter, so what right has anyone to ask for reasons? Perhaps that is a peculiar point of view, but it is sometimes raised.
Mr Leonard: That is a relevant point, and it comes up in other cases of open enrolment to primary and post-primary schools. There are popular schools, which are oversubscribed with applications, and this gives parents an opportunity to refer to something relevant to the admissions criteria that could make a difference to their child being selected — that is the rationale.
Mr Gallagher: Who will give parents the application forms, and where do they forward those to under the new Regulations?
Mr Leonard: They will get the application forms from the schools; state their choices on the form and forward it to the first-choice school. The school will forward it to the board, which will begin the clearing process.
The Acting Chairperson: What happens if, with the best intentions in the world, a board of governors sets flawed criteria? Who takes the blame — the board or the Department?
Mr Leonard: By law, admissions criteria are a matter for the board of governors.
The Acting Chairperson: A board could produce criteria that are incompetent, or which breach human rights and could be legally challenged. The civil, decent people who serve on those boards, and who have volunteered to take on extra administrative work, could find themselves culpable in law.
Mr Leonard: That sometimes happens in other sectors, and the Department has issued guidance to schools on what is to be included or excluded from the criteria. That is in the legislation. For example, the Department may spot a possible fault in the criteria outlined in a booklet that is due to be published for parents, and, in such instances, the Department would advise the board of governors that there is a potential problem.
The Acting Chairperson: Recently, I was involved in a case where the problem was not a fault contained in the criteria, but an omission from them. A vicious- minded parent would not have let it rest there, and the Department must be aware of such problems.
Mr K Robinson: Going to nursery school is a child’s first step away from home, and it is an emotional experience for everyone concerned. Will anything in the proposed changes ease the emotional distress felt by the children and parents, or assist school governors who may find themselves omitting something and committing some sort of misdemeanour? Is that distress acknowledged in the Bill, and did awareness of that highly charged emotional situation influence the drafting?
Ms Ingram: The purpose of the provision is to streamline the process as much as possible so that parents are not receiving offers from several different schools, which slows down the process. Are you referring to the entry into nursery school and the settling-in period?
Mr K Robinson: The settling-in period is a matter for the teachers and staff of the school. I am concerned about the panic that parents feel, particularly those with a child entering the system for the first time. They are faced with the formality of the process and gossip from the rumour mill. The process seems fairly simple, according to the legislation, but on the ground the process is complicated and emotional for parents, and their feelings could be transferred to their child.
Ms Ingram: Books containing contact information are issued, and board officers make themselves available to help parents through the process.
Mr McHugh: Often, parents apply for nursery places for their two-year-olds, and, as a result, three- and four-year-olds sometimes do not get places. Is that issue dealt with in the Bill?
Ms Ingram: Nigel McCormick will deal with that issue in the next evidence session.
Clause 20 empowers the boards to make arrangements for the admission of a child from outside Northern Ireland to a vacant place in a special school within their areas, and to charge for the place.
The Acting Chairperson: Why did you leave out special units, learning support centres and mainstream schools?
Ms Murphy: The purpose of the clause is to focus on children with significant special educational needs, and, in particular, schools for children with severe learning difficulties, which might be experiencing pressures. In the main, children attending units in mainstream schools have less significant educational needs, and could be accommodated in mainstream schools or other specialist schools in their own areas.
The Acting Chairperson: I am unsure about that. Many of the specialist units, particularly in my area, are in mainstream schools. Is that common?
Ms Murphy: In practice, there has not been any pressure on education and library boards or requests from other jurisdictions for places other than in special schools.
The Acting Chairperson: Is that a reasonable response? We are drafting legislation for the present, but we should also be able to anticipate for the future. Although there may be a demand for special units, if several units are attached to mainstream schools it can easily be seen that the emphasis could be placed on those other provisions.
Ms Murphy: Education and library boards have a direct funding relationship with special schools, which they do not have with mainstream schools. Currently there is no provision for ordinary grant-aided schools to set fees. The provision is a means by which special schools can accommodate children with severe learning difficulties.
The Acting Chairperson: Will the boards recoup the costs?
Ms Murphy: The boards will recoup the costs incurred.
Mrs E Bell: The legislation should be as clear as possible, not only to people drafting and implementing it, but also to parents and others affected by it. This provision will create many problems. Parents of children with any special needs or difficulties are very sensitive, and will be unhappy if they think that there is a clause for one set of schools and not for another.
Many problems that we encounter are from parents of children in units, rather than parents of children in special schools. The provision should be made clearer, as it is the Government’s policy for such children to be mainstreamed. Therefore, it would help the Government if it were clear that the provision is intended only for children with severe needs. I appreciate and welcome the provision, but it must be made clearer.
Will the boards take into account costs incurred by parents? For example, if a child moves from Bristol to attend Clifton Special School in Bangor, would it be incumbent on the relevant council to share part of those costs?
Ms Murphy: The cost would not be attributed to the parents, but to the education authority responsible for the special education needs provision for that child.
Mrs E Bell: My initial reaction is what happens to the parents. Many people are beginning to look at legislation here because it is "our" legislation, so it is in all our interests to make legislation clear. Although I welcome the provision, I want those points taken on board.
Mr K Robinson: Reimbursement from another part of the UK is possible. Is it also possible if a child comes from the Irish Republic, which is the most likely place from where a child will come to avail of special education in Northern Ireland?
Ms Murphy: Yes. We have consulted the Department of Education and Science on that. In practice, the numbers of children from there who receive special education here are very small, and are primarily placed in the Western and Southern Education and Library Boards. The Department of Education and Science would welcome the opportunity, but only where it is experiencing difficulty in placing children in schools within authorities there.
The Acting Chairperson: It must be made clear in the legislation that it refers to children with significant special needs. It is not abundantly clear that this refers to children with significant special needs, and we are all aware of the difficulty, regardless of whether we use that term. We must tidy up that section.
Ms Murphy: This would apply to children eligible for admission to special schools, rather than special units. We need the provision to be made by the special schools.
Mr McLaughlin: Would those schools qualify under the existing system?
Mrs E Bell: Will the criteria be clear to everyone?
Ms Murphy: Yes is the answer to both questions.
The Acting Chairperson: Will you consider this point again, as I do not think that it will be abundantly clear to the ordinary person? Also, can you reassure us about clause 20(4) and (5)? Will the boards be able to recover the teaching costs?
Ms Murphy: The boards will be able to recover any appropriate costs necessary to meet the needs of the child.
The Acting Chairperson: The Northern Ireland Human Rights Commission sent you a submission making various recommendations and suggestions. Will you give us your response?
Ms Ingram: We received that document at 9.00 am this morning.
The Acting Chairperson: Ours arrived at the same time. The Northern Ireland Human Rights Commission makes some worthy points about clause 20(2).
Mrs E Bell: I agree with their amendments.
The Acting Chairperson: The Northern Ireland Human Rights Commission has suggested two additional paragraphs. Will you come back to us on that, please?
Ms Murphy: From what we have read so far, the main issue centres on enrolling the child for one year at a time. In drafting this, we were mindful of what was required of the education and library boards, which have a qualified duty under the legislation to make provision for children who are resident in their area. Also, children who enter that type of school would first attend at not just aged three, four or five, but could do so at any stage. Therefore the boards may not be aware at any given time of children who come to them in subsequent years.
The Acting Chairperson: Will you come back to us on that point?
Ms Ingram: Clause 31 requires that all members of the Council for Catholic Maintained Schools (CCMS) be appointed at the same time. This will remove a cumbersome process of appointment, which has previously been staggered.
The Acting Chairperson: CCMS has not raised any points with us.
Ms Ingram: It wants that new system to be put in place.
The Acting Chairperson: CCMS has suggested that school admission numbers should factor in considerations of the treatment of children, which is also mentioned in the Bill. Do you have any comment on that?
Ms Ingram: That is a much wider issue, and we can comment if that helps.
Mr Leonard: Under the current legislation, statemented children are over and above the open enrolment arrangements, and are not counted against the school’s admission or enrolment numbers. The CCMS suggests that those children be counted against the enrolment numbers, which is the post-year 8 figure. We treat statemented children as supernumerary, because by virtue of being statemented they are in a special category. We do not penalise the school by counting them against their enrolment number. If we do that, other local pupils cannot be admitted to the school. The practice, which has always been welcomed by the schools, is that statemented children are treated over and above the approved enrolment numbers, which is important.
Ms Ingram: That proposal is new to us, and we will consult with CCMS on it.
The Acting Chairperson: This should be given serious consideration. I would not treat this lightly and would like you to give us more of your thoughts on that to ensure that we have covered that sensitively.
That concludes our deliberations on clauses 18, 19, 20 and 31 for today. I thank you all very sincerely for your answers.