Children, Schools and Families Bill

I am grateful to the Minister for his courtesy and careful consideration of the deliberations in Committee, but the Government new clause is a frank admission that the pupil and parent guarantees set out in clauses 1 to 3 are likely to lead to a proliferation of complaints. That is likely to happen, however, with or without the new clause, when we have an education system in which 9 per cent. of boys leave primary school without being able to obtain any grade in the key stage 2 English SATs. In other words, they are leaving primary school completely illiterate. Given that we also have an education system in which 40 per cent. leave primary school without having mastered the basics of reading, writing and maths combined, there is plenty of scope for complaints under these guarantees, particularly under guarantee 2.2, on page 24 of the guarantee document, which states that""the curriculum is tailored to…every child's needs so that…every…pupil receives the support they need to secure good literacy, numeracy and ICT skills, learn another language and about the humanities, science, technology and the arts"." The new clause amends the Apprenticeships, Skills, Children and Learning Act 2009, particularly sections 207 and 216, which relate to the complaint procedures that are the mechanism under which the guarantees can be enforced—to the extent that they can be. As the Minister has said, the new clause is designed to change the complaints procedure so that the local government ombudsman does not have to investigate complaints that he considers to be "frivolous"—an addition to the word "vexatious", which is already in the Act. This follows concerns expressed by the teacher unions about the pupil and parent guarantees, particularly the concerns of the Association of School and College Leaders, which believes that""the creation of these guarantees will open the floodgates for increased litigation against schools. The introduction of these guarantees has the potential to create a 'whingers' charter' and bring a proliferation of frivolous complaints by a minority of litigious parents, thereby serving to increase the work load of school leaders and undermine the work that schools have done to create more positive relationships with parents."" It is obviously right to ensure that the local government ombudsman does not have to investigate frivolous or vexatious complaints, and it is right that head teachers are protected from defamation suits in their communications with the local government ombudsman on these matters. There is absolutely no guarantee, however, that the ombudsman will be able to remedy any of the complaints about the standard of education provided. Tony Redmond, the current local government ombudsman, said in evidence to the Committee:""I do not think that it is the role or responsibility of local government to change a school".––[Official Report, Children, Schools and Families Public Bill Committee, 19 January 2010; c. 5, Q11.]" He went on to say that all he could do was make recommendations. He said that""we are also conscious of the fact that in terms of the curriculum and teaching, some of those things might step outside the jurisdiction of the ombudsman".––[Official Report, Children, School and Families Public Bill Committee, 19 January 2010; c. 7, Q5.]" In other words, the whole process is a complete waste of time. All it will do is add yet another layer of bureaucracy and waste to an education system already deeply mired in bureaucracy and waste. Government amendment 67 is, as the Minister has said, a concession to both Opposition parties following our amendment in Committee that sought to make it clear that the pupil and parent guarantee did not create legal obligations under either the law of contract or the law of tort. Our original amendment said:""A pupil or parent guarantee shall not be capable of creating any obligation in respect of whose breach any liability arises in contract or tort."" That amendment was lifted almost word for word from section 111(6) of the School Standards and Framework Act 1998, which was introduced to prevent home-school agreements from being enforceable in the courts. We believe that the Bill as originally drafted would have left open the possibility that the pupil and parent guarantees could be enforced through court action against schools that might breach those guarantees. That also concerned the teaching unions. The Association of School and College Leaders, for instance, said:""ASCL believes that the creation of these guarantees will open the flood gates for increased litigation against schools."" In his oral evidence to the Committee, ASCL's general secretary John Dunford said:""Our main concerns about the Bill are around the guarantees and potential in an increasingly litigious society for parents to take up an awful lot of head teachers' time in disputing what are rather uncertain and woolly guarantees."––[Official Report, Children, Schools and Families Public Bill Committee, 19 January 2010; c. 4.]" The National Union of Teachers said:""NUT head teachers are concerned that without adequate resources or provision for staff training these proposals may leave schools vulnerable to litigious parents or over-eager lawyers who have misinterpreted the Government's intentions. The NUT is concerned that any breaches of the guarantees should not be treated as akin to breaches of statutory duty in the health and safety sphere granting persons distinct rights to legal action and monetary compensation."" In Committee, the Minister said that he agreed with the sentiments expressed in the amendments, and would return to the issue after examining it further. He also said, however—as he said a moment ago—that he did not think it necessary to include the explicit reference to the law of contract. He said:""The guarantee document does not create a contract between parents or pupils and the school, because it is a public law document."––[Official Report, Children, Schools and Families Public Bill Committee, 28 January 2010; c. 254.]" It is clear from Government amendment 67 that the Government have only explicitly ruled out tort, and I think that that is a mistake. The creation of guarantees implies, or could imply, a contractual obligation. The only thing missing is a consideration to given rise to a contractual obligation, but surely the consideration in this instance is taxpayers' money. If the complainant is a taxpayer or council tax payer, surely that might be regarded as the consideration element of a contract, implicit in the pupil and parent guarantees in clause 1. As for its being a public law document, surely that would apply equally to a home-school agreement, but the drafters of the School Standards and Framework Act 1998 considered that an explicit exclusion of liabilities under contract law as well as tort law was necessary.