Note to DfES and Cabinet Office re Consultation

We, the teachers at Tyndale Academy (E78NL) take this opportunity to point out what we take to be fundamental flaws in the DfES Consultation, "Definition of Full-Time Education" and to ask that the Consultation be declared void. It would then be open to the Department to reissue the paper and reintroduce the process in a manner which complies adequately with the Cabinet Office Code of Practice for Consultations.Criteria 3.1 Use plain language: avoid jargon and only use technical terms where absolutely necessary. A consultation should be as accessible as possible. Explain complicated concepts as clearly as possible and, where there are technical terms, use a glossary.

We feel that at several points the third criterion of the Code has been breached particularly as the grammar at several points is sufficiently unclear as to render any resultant responses of doubtful value. For example, at one point the terms "a major part" and "the major part" are used as if they mean the same thing. Additionally, the term "the major part" has not been explained and yet consultees are being asked to pronounce upon whether a school which provides the major part of the child's education ought to be required to register.

Criteria 3.4 Efforts should be made to bring the consultation to the attention of all interested parties. As well as using the internet you should consider publicising the consultation in ways most appropriate for the groups you wish to reach.
Any Guidance which is issued as a result of the Consultation will apply to all Local Authorities in England and Wales. Where it appears to them that a child is not receiving a full time and efficient education the LA has a duty to investigate the matter. It is this duty which means that LA's should have been identified initially as interested parties and should have been consulted along with other such interested parties.

The consultation specifically refers to children educated otherwise than at school and the DfES particularly notified the "Home Education Sector" of the existence of the documents and invited responses. It is our view that the Guidance will clearly profoundly affect any LA which is involved in inspecting provision of the type envisaged in the Consultation document. At present there are only two classes of children; those educated "at school" and those educated "otherwise than at school". It would appear that flexi-schooled children are either essentially "schooled" or receiving their education otherwise than at school. However, the arrangements proposed in this Consultation Paper will have the effect of creating a third class of children in whom LAs may have especial interest. The first group will be children receiving a full-time education at school; the second, those receiving their full-time education otherwise than at school; and the third, those receiving their full-time education by means of a combination of school and education otherwise than at school (this is neither essentially or even simply "education otherwise" nor is it essentially education "at school"). The implications of this third class for LA's is far reaching and significant. LA's will no longer be able to have a single regime for judging provision of full-time education provided otherwise than at school. Before the proposed changes provision for children educated "otherwise" could be adjudged to be adequate or inadequate on the basis of evidence which the LA inspectors gather as a result of enquiries made of the parents responsible. If the proposed changes are enacted the LA will no longer be able to make a simple determination as to whether the education provided otherwise than at school is efficient or adequate. They will only be able to comment on the part of the education for which the parent retains full responsibility; that is, the education otherwise component. Any component of the education provided at school will not be subject to LA inspection or scrutiny as it lies outside of the scope of the LA responsibilities to carry out such inspection. I am sure you can see that provision that might under normal circumstances be classed as inadequate due to lack of breadth of curriculum can now no longer be judged in this way unless the parent has retained responsibility for that particular area. If that curriculum area is the responsibility of the school (as per the consultation suggestion) then the LA cannot pass judgement on it and will have to put in place new procedures for making different types of inspection regimes and determinations for those educating wholly "otherwise than at school" and for those educating partly otherwise and partly at school.

It is a particularly important omission that LAs were not on the original list of consultees and indeed were not specifically advised of the Consultation until very late in the process. They were given nothing like the 12 weeks to respond that other consultees had. Indeed they were informed by bulletin approximately a month before the end of the process. The fact that the Department saw fit to contact them even at that late stage shows that their error was significant and that they could not simply rely on LAs seeing it on the DfES website.

We feel that in principle the same error was committed in relation to OFSTED, another principle stakeholder which was not identified or notified of the Consultation. Whereas OFSTED have no duties in respect of those educating otherwise than at school they do have the duty to inspect schools which may be providing part time education for children educated at school. The Department's proposal will have the effect of putting a new duty on OFSTED in that they will be asked to inspect and adjudicate on schools which provide education for such children. That is to say they will have the duty of advising the DfES on the matter of whether an institution providing less than 20 hours per week is registrable as an Independent School. Again, OFSTED was not on the list of principle stakeholders when the Document was sent out to other stakeholders who were informed personally on 30 November 2006. We believe these omissions to be inexcusable.

We feel that the failure to properly consult the LAs and OFSTED is a clear breach of the Cabinet Office Guidelines for Consultations and means that the process is not merely technically flawed but rather, fundamentally flawed.

To quote from a letter issued by Lord Adonis on another Consultation (regarding Elective Home Education) "The consultation will adhere to the Cabinet Office code of practice on consultations and the usual lines of Ministerial accountability will apply to this, as with all work undertaken by the Department for Education and Skills." (January 2007)

It seems that changes of the sort planned by the DfES will necessitate considerable revision of LA and OFSTED procedures and guidance to their respective Inspectors. For this reason it seems to us that these bodies ought to have been specifically notified of these proposed changes and of the Consultation. They will, after all, bear the greatest administrative burden of any changes. I am aware that at some point the LAs were eventually informed. However, because the consultation process was already over half way complete it was surely unfair and inadequate to give the LAs such a limited opportunity to give a considered response to the proposals. If this consultation is about changing patterns of educational provision rather than about a single establishment then the Department ought to expect LAs to respond.

Criteria 1.3 Informal consultation with these stakeholders should be conducted prior to the written consultation period...
We submit that our establishment, Tyndale Academy, which DfES officials and a Minister have said in writing are the principal cause of the need to change the Guidance, ought to have been involved in this process. Indeed we have specifically asked in writing to put our concerns to Departmental Officials to no avail. Perhaps the proposed changes would not have been necessary if we had been given this opportunity. As well as Tyndale, we feel that LAs should certainly have been part of this pre-consultation process as they would best be able to advise the DfES as to the practicability and implications of proposed changes. The result might have been a clearer proposed definition rather than the inadequate set of proposals which is less clear than what currently is in place.

Criteria 1.8 Specifically mentions that "some stakeholders... may be particularly difficult to reach."
It goes on to say that Departments ought nevertheless to pro actively engage. We submit that LAs and OFSTED are not "stakeholders who are particularly difficult to reach" and that they ought to have been central to the "informal consultation process prior to the written consultation period". As far as we are aware only Newham LA were informed of a consultation that potentially affects every LA in the country.

We are aware that Ministers are not at all obliged to consult on such matters but where they do they are bound to follow the Cabinet Office Guidance for Consultations or to make clear why they are deviating from them. We repeat that LAs and OFSTED are major stakeholders who ought to have been properly and fully consulted and specifically sought out.

6.2 Ensure that a Regulatory Impact Assessment (RIA) is attached, where required, highlighting the costs, benefits and risks of the proposal. Respondents should be encouraged to comment on and challenge the assumptions in the RIA where one is included.

6.4 Consider any unintended consequences of the proposal and ask respondents to highlight these in their response.
We believe we have indicated above that there are significant Regulatory Impacts which these proposals would have, at the least for LAs and OFSTED, let alone for parents and schools, and that these have not been outlined for consultees to consider carefully and to respond appropriately and in an informed manner. These Regulatory Impacts have unintended consequences in terms of significant resource implications for LAs and OFSTED.

6.3 Consider alternatives to regulations, such as voluntary codes, and encourage respondents to suggest alternatives when responding to the consultation exercise.

The DfES has not put down alternatives to regulations on this matter, neither have they encouraged respondents to suggest alternatives. They have laid down a set of proposals in a "take it or leave it" fashion.

Most importantly there is no reason given as to why the Department should want to change the Guidance to encompass establishments that presently have no requirement to register. The will of Parliament on this matter is quite clear and it is that only educational establishments of five or more children of compulsory school age which are not maintained by the state and which are providing full time education etc. should have to register as Independent Schools. It is not for civil servants or even ministers to put their intentions above those of the will of Parliament. Such an eventuality could give rise to grounds for a judicial review of any new Guidance. To say that they will treat an establishment as though it were full-time runs counter to the express will of Parliament that schools are full-time establishments.

For these reasons we ask the Department to end the Consultation process. If the DfES feels the need to reissue it then they should comply fully with the Cabinet Office Code of Practice.