Bedroom Tax Debate: Emily Thornberry MP highlights a glaring inconsistency

First published by Left Foot Forward on 12 November 2013 

The misery and injustice of the bedroom tax has been well documented, as has the fact that there simply aren’t enough smaller properties to accommodate those deemed to have a ‘spare bedroom’.

But what hasn’t received adequate coverage so far is that pensioners are exempt from this policy while disabled people – who make up two thirds of those affected by the bedroom tax – are not.

This is a strange exemption given that one of the stated aims of the bedroom tax is to free up larger ‘under-occupied’ properties in order to reduce overcrowding. As Labour MP Emily Thornberry pointed out in today’s Opposition Day Debate, older people often inhabit houses with unoccupied bedrooms.

She put the following question to the pensions minister Steve Webb, who is filling in for Iain Duncan Smith:

‘The honourable gentleman began his contribution this afternoon by talking about overcrowding…part of the problem is ‘empty nesters’, elderly people whose families have grown up. If the principle behind this bedroom tax is…to move people on to smaller units, why does it not apply to pensioners?’

Far from saying that the bedroom tax should be extended to pensioners, Thornberry was exposing a further injustice in this wretched policy.

What reason can the government possibly give for excluding older people which does not also apply to disabled people? That older people are more likely to vote Conservative, perhaps?

Clegg's praise for the Labour programme scrapped by Gove points to an alternative

The Deputy PM's recognition of the success of London Challenge reveals - perhaps unintentionally
 - the tension between collaborative methods of school improvement and Gove’s market-based
 reforms.

First published on The Staggers on 28 October 2013

In his education speech last week at Morpeth School, a secondary in Tower Hamlets rated "outstanding" by Ofsted, Nick Clegg noted that "if you’re a poor child going to school in some parts of Britain, you’re less likely to do well than poor children here in Tower Hamlets." He rightly attributed this success to London Challenge, a collaborative programme involving hundreds of schools in the capital. What he didn’t say, however, was that this programme was axed by Michael Gove, along with its successful spin-offs in Manchester and the Black Country.

The London Challenge is one of the unsung triumphs of the last Labour government. When it was launched in 2003, London had the lowest proportion of students attaining five A*-C grades at GSCE out of the nine English regions. By 2010, after seven years of the capital’s best state secondaries carefully mentoring weaker schools and coaching their teachers, it had the highest. This is particularly impressive when you consider the high levels of deprivation in the capital.

Ofsted first reported on the programme in 2006 when it found that London schools "had improved dramatically and that there was much to celebrate." A second report was published in 2010, by which time the programme had been extended to primary schools. Ofsted reported that "London Challenge has continued to improve outcomes for pupils in London’s primary and secondary schools at a faster rate than nationally."

In 2011, a report by London Metropolitan University, which looked at results in Manchester and the Black Country as well as in London, also attributed the greater improvement in these areas to the City Challenge programme. This report emphasised the strong evidence-base which informed this method of school improvement: "City Challenge built on a substantial body of research about school improvement which emphasised the importance of effective leadership, networking and collaboration." The most effective strategies to improve teaching and leadership, said the researchers, took place in schools. Perhaps unsurprisingly, observing excellent teaching and receiving expert coaching within your own classroom or from another head teacher are much more effective than professional development courses.

How frustrating, then, that Clegg, even after praising London Challenge, spoke as if the need for collaboration between schools were a new discovery. Mentioning areas with underperforming schools such as West Berkshire and Shropshire and seaside towns like Blackpool or Hastings, he said: "But there are also weak schools and schools which have simply stalled…The good teachers in these schools, they want to learn from their better performing neighbours. But they don’t have a clear idea about how to start that conversation. They want to improve…But they don’t have the right leadership and skills on site to boost their performance.They can’t progress. Their schools are stalled and could do much better".

These are exactly the issues which the London and City Challenge programmes addressed. But how can Clegg reconcile his desire for increased collaboration with the coalition’s market-based reforms? The most obvious obstacle to collaboration is the current emphasis on competition to raise standards. Over and over we’ve heard that free schools will force neighbouring schools to compete, 'driving up standards.' The government is even deliberately introducing free schools in areas of oversupply so as to enhance competition. If schools are incentivised to try to attract pupils away from neighbouring schools, why on earth would they want to help those schools improve?

Clegg unwittingly highlighted the weakness of competition as a driver of improvement when he said that there are teachers who want to improve but who are held back by lack of 'leadership and skills onsite'. Competition as a method to raise standards assumes that underperforming teachers and leaders are complacent – that they know that they could improve but aren’t doing anything about it - and that the threat of a competing school is necessary to make them up their game.

But as Clegg recognises, there are lots of teachers and head teachers who already want to improve but don’t know how. Competition won’t give them the skills to improve but it will prevent many of them from accessing the most effective method of improvement. London Challenge saw the vast majority of teachers improve because the programme addressed a range of causes for underperformance. As well as helping teachers and leaders by showing them where they were going wrong and giving them new skills and confidence, it also inspired improvement in teachers who had previously been unmotivated or demoralised.

The report on City Challenge held that "perhaps the most effective aspect of City Challenge was that it recognised that people, and schools, tend to thrive when they feel trusted, supported and encouraged. The ethos of the programme, in which successes were celebrated and it was recognised that if teachers are to inspire pupils they themselves need to be motivated and inspired, was a key factor in its success."

Clegg should be pressed on this point. Would he like to bring back a national programme along the lines of the London Challenge which would, as he put it, allow schools to "learn from their better performing neighbours"? And if so, what are his views on competition between schools?

Michael Gove and David Laws prioritise more academies over child protection

First published by Left Foot Forward on 7 November 2013

The Department for Education has become terribly leaky recently; and it isn’t difficult to see why.

The latest internal document, obtained by the Guardian, shows that Michael Gove and schools minister David Laws are pushing through aspects of the academy programme which are not value for money while downgrading oversight of boarding schools and home education – despite warnings that this will increase child protection risks.

In a document identifying ways in which the DfE could cut £290m from its administrative budget by 2015/2016, civil servants advised ministers that forcing underperforming schools to become sponsored academies in the face of local opposition was ‘very expensive’, and that success in securing academies in this way comes at a ‘disproportionate cost.’ 

But, as the Guardian reported, ministerial comments on the document show that this cut was opposed by Gove and Laws. One such comment says, ‘No – totally wrong. Really important area.’

Michael Gove repeatedly asserts that underperforming schools which become academies under the aegis of an approved academy sponsor improve more rapidly as a result. There is no evidence for this. Analysis by Henry Stewart of the Local Schools Network shows that underperforming schools which stay with local authorities have done as well as those which became academies.

Rather presciently, Stewart suggested earlier this year that instead of forcing schools to become academies, more attention should be paid to what successful maintained and academy schools actually do to improve standards, saving ‘the cost and time of academy conversion’.

But no, Michael Gove prefers to ignore the evidence (remember his call in 2010 for more evidence-based policy in education?) and force through structural changes to schools against the wishes of parents (apparently parental choice is only a good thing when Gove approves of that choice).

Worse, at a time of austerity, he ignores advice that these reforms are not value for money and prefers to cut elsewhere, even if that means putting children’s safety at risk.

And this from the man who accuses his opponents of putting ideology before the interests of children.

Are free schools really more popular in Labour areas?

First published on Left Foot Forward on 14 October 2013  

Recently The Telegraph reported that more free schools have been set up in areas controlled by Labour than any other political party.

This, the paper argued, demonstrates “the popularity of the schools in the party’s heartlands” and will “pile pressure on Labour to reverse its opposition to the reforms”.

This might be the logical conclusion to draw if all types of school could be set up with comparable ease.

But they can’t.

Local authorities are legally responsible for ensuring that every child has a permanent school place but, since the introduction of the Education Act 2011, they are unable to open a new local authority maintained school if there is any group, business or established academy chain that would like to run the new school ‘as an Academy’ – in other words, as afree school.

What’s more, the Education Act 2011 obliges local authorities to actively ‘seek proposals’ for the establishment of any new school ‘as an Academy.’

In short, the law ensures that, wherever possible, new schools are established as free schools. Local authorities can only set up their own maintained schools if there is no approved bid to run the school as a free school and with the consent of the secretary of state.

As has been widely reported, many areas of the country are facing a chronic shortage of school places. Most of these shortages are in urban areas, where Labour support is strongest. When Labour councils act to meet their statutory duty by building more schools, many of those schools will therefore be free schools almost by default – hardly proof of their popularity.

Supporters of free schools may point to the fact that a free school provider must show that there is parental demand for the new school before it receives approval from Michael Gove. This is not too difficult in areas where there is severe pressure on places: support doesn’t necessarily mean that free schools are favoured – it could just be that parents are desperate for any type of school.

This raises a wider point when it comes to Labour’s education policy: would Tristram Hunt continue to rig the system in favour of free schools, or would he untie local authorities’ hands so that they can respond more effectively to the school places crisis?

The government’s free school programme just got sinister

*First published on Left Foot Forward on 28 September 2013

Shortly before breaking up for the summer holidays this year, a community primary school in Fulham suddenly and unexpectedly found itself under threat of closure.

Parents and teachers at Sulivan Primary School, London, were understandably shocked at the news, for Sulivan is a successful school which is oversubscribed in the lower year groups: in other words, none of the normal reasons for school closure apply.

But the Tory Council doesn’t want to close Sulivan School for normal reasons. They want to close it so that its land can be given to a free school, specifically a Church of England school for boys aged 11-19.

These proposals are being fiercely contested by Sulivan’s staff, pupils, parents and local residents in a battle which has significance far beyond South West London; for if a free school can trump the needs of local parents and pupils in Fulham simply because it is a free school, why not elsewhere?

The more you learn about Sulivan School and educational provision in Hammersmith and Fulham, the more irrational and unfair the proposal becomes.

At its last inspection the school was rated good with outstanding features by Ofsted.  The percentage of its pupils eligible for free school meals is well above the national average, as is the number of pupils who speak English as an additional language. According to Ofsted’s most recent report, ‘from starting points which are below average, pupils of all abilities make good progress, leaving Year 6 with standards which are broadly average.’

Pupils at Sulivan School enjoy exactly the type of innovative and inspiring teaching for which Michael Gove so often praises free schools. The school has a meadow, a vegetable plot and flower beds where pupils garden and outdoor science lessons are held. Ofsted also recognised that the school forges excellent links with the local community through sporting and charitable events.

Ripping out this school from the heart of the community could potentially be justified if it were failing to meet the needs of a changing local population, but primary school places are exactly what Hammersmith and Fulham needs at the moment, along with so many London boroughs. On current predictions, Hammersmith and Fulham faces a 2.9 per cent shortfall in primary places by 2014, yet the plans to close Sulivan School will result in a decrease in primary places.

At the moment, Sulivan School takes a maximum of 45 pupils per year. Current pupils will be moved to a different school, New Kings Primary, which is to be extended in order to accommodate them – New Kings currently has an intake of 30 pupils per year. New intakes to this enlarged school will then be capped at 60, reducing the combined capacity of the two schools by 20 per cent.

In contrast, there is no shortage of secondary school places in the area. As a parent writing on the Local Schools Network site describes, the Sulivan site is within “100 yards … of a secondary judged to be outstanding by Ofsted but with places available’”, and is also near a secondary school which is the highest ranked boys school in London when looking at progress made by students. That also has spare capacity.

This whole debacle makes a mockery of the principles that are supposed to underlie the government’s educational reforms. Gove frequently boasts that this government responds to the needs of parents by giving them and other groups the freedom to meet local demand where the state has failed to do so. In Fulham the opposite is true, with the state trying to forcibly remove a school which local parents desperately want to stay.

Passions are running high among Sulivan supporters. Between 250 and 300 crammed into ameeting at the school earlier this month, following a controversial public meeting at New Kings Primary where approximately 60 supporters of Sulivan School were reportedlyturned away by Council bouncers.

The scale and intensity of the support for Sulivan School is not surprising. If a popular, successful school is already in place, natural justice dictates that a new school should not be able to oust it, unless that school can demonstrate exceptional reasons why it should do so.

Perhaps that’s why the Council has stated in its consultation that freeing up Sulivan’s land for a free school is only an “added benefit” of proposals that would have been made anyway. The reason for this, they say, is that both primaries are small and undersubscribed and would benefit from the economies of scale that an “amalgamation” would bring. This would free up funding for additional spaces in more popular primary schools.

The only way the Council can make this case stack up is by filling the consultation documents with misrepresentations and errors. Most importantly, they have used outdated roll figures to wrongly state that Sulivan is undersubscribed in all year groups and therefore not a popular choice for parents. They also fail even to consider transferring pupils from the smaller New Kings School to Sulivan.

As many Sulivan supporters have pointed out, this would be more logical given that their school is the larger and has space to expand while still retaining its special features.

The consultation ends on 8 October with a final decision due in December. If the Council ploughs on regardless, it is likely that it will face a judicial review of the decision. Hammersmith and Fulham Council is no stranger to judicial review, having previously tried and failed to close another community school after campaigners issued legal proceedings. You’d have hoped that they’d have learned their lesson.

The campaign to save Sulivan Primary School from unnecessary closure is now on Twitter.

Show us your evidence, Jeremy Hunt

*A shortened version of this article was published on Left Foot Forward on 16 September 2013.



It is now over three weeks since Jeremy Hunt appealed against the High Court’s ruling on Lewisham Hospital and we are still none the wiser as to his grounds of appeal. 

As I explained in a previous article for Left Foot Forward, the High Court ruled comprehensively in favour of the Save Lewisham Hospital campaign in July, quashing Hunt’s decision because he had no legal power to close or downgrade Lewisham’s A&E and maternity services.

It matters that Hunt has not disclosed his reasons for appeal because he is using public money to pursue a case which he is likely to lose and which, despite his protestations, is not in the public interest. Given that taxpayers are paying for this case, we are effectively the client, whether we want to be or not. Hunt’s failure to disclose his grounds of appeal is therefore akin to a solicitor lodging an appeal on a paying client’s behalf and then refusing to inform that client of the legal basis for the appeal or their chances of success.

Disclosure now would allow scrutiny of Hunt’s case and, if it’s weak, allow public pressure to be exerted on the government to drop the appeal before even more costs are incurred.

It is hard to guess at the legal basis of Hunt’s appeal because the case against him is so strong. The government’s main defence at the High Court stage was one of statutory interpretation – Hunt argued that the Health Act 2009, which established a regime to deal with failing healthcare providers, was intended by Parliament to allow changes to services provided by a failing NHS trust (in this case the South London Health Trust) and changes to services provided by any neighbouring NHS trust (Lewisham).

The judge, Mr Justice Silber, provided at least eight arguments based on an analysis of the legislation and statutory guidance which ‘individually and cumulatively’ showed that the legislation was only intended to permit changes to failing NHS providers.   

The only potential basis I could think of for Hunt’s appeal was the possibility that the legislation and the statutory guidance were at odds with what ministers, other MPs and peers thought they were voting for. It is theoretically possible that they believed that the Bill allowed action in neighbouring trusts when in fact it does no such thing. 

This would lead to slightly tricky legal arguments about which Hansard debates if any were admissible in court as an aid to interpretation. The current rules, put simply, are that when legislation is ambiguous, unclear or would lead to an absurdity if interpreted literally, then reliance may be placed upon clear statements made by ministers or other promoters of the Bill.

The Health Bill was, somewhat ironically, led by Andy Burnham who was Secretary of State for Health at the time. I have gone through the Hansard reports for every stage of the Bill and can find nothing which suggests that he or any other minister intended the legislation to allow changes to services outside the failing NHS provider in question.

On the contrary, statements by members and peers on both sides show that the debate was proceeding on the basis that the regime only applied to the one failing provider. I have selected some of the most revealing extracts below.  

Andy Burnham, second reading : ‘… the Secretary of State would appoint an independent trust specialist administrator to review and consult patients, public and staff on the organisation’s future. Recommendations would be made to the Secretary of State, who would report to Parliament the final decision about the organisation’s future.’

‘The organisation’ is the failing NHS provider. Note the use of the singular – this is repeated throughout the Parliamentary debates. Further, one of the key reasons for the High Court’s ruling was that an administrator appointed to a failing trust is only obliged to consult with parties in that trust before recommending a course of action. The judge said that it would be very strange if Parliament had meant to give the administrator and health secretary identical powers over several trusts but then only require consultation in one of them. The above extract supports this line of argument.   

Mike O'Brien (Labour health minister), committee stage: ‘I entirely agree that staff engagement is a central principle of such a regime. When such intervention is triggered, it will understandably be unsettling for staff, so we designed the process to produce a swift resolution while ensuring that staff are engaged throughout.’ 

The Health Act 2009 accordingly provides that ‘The trust special administrator must hold at least one meeting to seek responses from staff of the trust and from such persons as the trust special administrator may recognise as representing staff of the trust.’ There is no provision to engage staff in any other trust, showing that only changes to the failing trust were intended by ministers.

Lord Darzi of Denham (Labour Parliamentary Under Secretary), House of Lords committee stage : ‘The regime also gives clarity to staff and patients about the process that will be followed, when decisions will be made, and how they can input into the process. Unlike in the insolvency provisions, staff and patient involvement in this process is guaranteed in the legislation.’

The only staff and patient involvement that is guaranteed by the Health Act is that of the staff and patients of the failing trust, again showing that changes to services provided by other trusts were not envisaged.  

Conservative Earl Howe expressed concern that the staff of the failing trust were to be consulted once the draft report had been published but not before: ‘No mention is made there of the staff at the trust, and I ask the Minister why that is. No one would deny that the most important people in this equation are the service users—the patients—but we need to remember that there are others with important rights here, and those are the people who work for the trust and provide the services which, in the circumstances envisaged, would be under threat of closure. Those are the people whose jobs are at risk.’ 

Earl Howe was one of several peers to express concern that the Bill didn’t provide for adequate consultation with those who may be affected. But not once did anyone raise the issue of consultation with patients and staff in other trusts: if anyone had thought that the Bill allowed changes to trusts other than the failing trust, this point would have been raised.

We are therefore no clearer on the grounds for Hunt’s appeal but even more certain that the legislation was only intended to allow changes to failing healthcare providers.

But we shouldn’t be forced to guess reasons, we should be told. And soon. 

Government to appeal Lewisham Hospital ruling: urgent questions for Jeremy Hunt

*Published on Left Foot Forward on 4 September 2013

On Saturday 14 September the people of Lewisham will host a victory parade and party to celebrate the High Court ruling which – for now at least – has saved their hospital. By the standards of judicial language, this ruling was pretty robust. The judge quashed Hunt’s decision to downgrade Lewisham’s A&E and maternity services, making it emphatically clear that the Health Secretary had no legal power to do so.

Unfortunately, Jeremy Hunt has spoiled Lewisham’s party by confirming on 22 August that he will appeal against the ruling. The hypocrisy of this decision is staggering. This government has been highly critical of workers who pursue weak employment tribunal cases on the off-chance of success, relying on taxpayers to fund their one-way bet against their employers. Hunt’s decision to appeal is no different.

As the legal process drags on, the staff and patients of Lewisham Hospital must continue to live with destabilising uncertainty. Hunt has a duty to them, to taxpayers and to Parliament to set out the grounds on which he thinks the High Court has erred and why he thinks an appeal is an acceptable use of public funds.

The case against Jeremy Hunt

The origins of this case lie outside Lewisham in the neighbouring South London Healthcare Trust (SLHT). The SLHT had become financially unsustainable, losing £1m a week due to crippling PFI contracts.

Lewisham Hospital, by contrast, was – and still is – a highly successful, solvent hospital which is part of a separate NHS trust, the Lewisham Healthcare Trust. It had nothing to do with SLHT’s financial difficulties, but this did not stop Jeremy Hunt from approving recommendations to downgrade services at Lewisham as part of the ‘solution’ to the problems in the SLHT.

There are two relevant ways set out in law by which the Secretary of State for Health can deal with problems such as those in the SLHT. The first is a broad power under section 8 of the National Health Services Act 2006 (the 2006 Act) which allows him to give any direction concerning the functions of NHS bodies. This power comes with a counterbalancing duty to consult with a wide range of affected parties.

The regulations governing this consultation are detailed and the process normally takes two years or more.  In addition, any reconfiguration of services must meet the government’s own four tests, including obtaining support from the relevant GP Commissioners.

The second way to deal with a failing NHS trust is the Unsustainable Providers Regime in Chapter 5A of the 2006 Act. It was this method that Hunt chose for the SLHT. This regime, described as an ‘exceptional bespoke procedure’, is designed to deal quickly with failing NHS organisations.

Under the Unsustainable Providers Regime an administrator is appointed to run the failing NHS trust and to make recommendations for its future to the Secretary of State. The administrator must consult with specified parties connected to the trust; there is no obligation to consult any party outside the failing trust. These consultation obligations are deliberately less onerous than those under section 8 so that failing NHS organisations can be dealt with rapidly. There is also only a duty to ‘have regard’ to the four tests for reconfiguration, not to meet them.

Chapter 5A defines the powers that could be legally exercised by Jeremy Hunt in respect of the SLHT and other hospitals such as Lewisham. The key sections empower the Health Secretary to take actions ‘in relation to the trust’ (‘the trust’ being the failing trust in question.)

The meaning that Parliament had intended to give to the words ‘in relation to’ formed the crux of this case. Lewisham contended that they clearly referred to the failing trust and no other, meaning that the only hospital services that Hunt could lawfully change were those in the SLHT.

Hunt’s failed defence

The government argued that the words ‘in relation to the trust’ were intended to have a broad meaning, allowing actions to be taken in respect of any NHS trust which had an ‘appropriate connection or relation to the trust in question.’ Lewisham Hospital fell into this category, it was argued, because it was in a neighbouring trust.

Government lawyers argued that NHS trusts do not operate in isolation and that problems in one were ‘overwhelmingly likely to involve neighbouring trusts.’ This, they submitted, meant that solutions were always likely to involve neighbouring trusts and that Parliament would never have intended to limit solutions to the one failing trust.

In essence, Hunt was arguing that the Unsustainable Providers Regime was intended to give the government almost identically broad powers to those already available under section 8 but with almost none of the safeguards.

Government lawyers also highlighted the statutory guidance for the regime which states that property of the failing trust can be transferred to neighbouring trusts. This, they argued, showed that neighbouring trusts were intended to be part of the solution under the regime.

Even if his actions under Chapter 5A were deemed unlawful, Hunt argued that his decision could not be quashed because he would have reached the same result under his section 8 powers.

Decision

The judgement gives a long list of reasons why the words ‘in relation to’ only refer to the failing trust and not to any of the eight trusts in South East London. I have summarised some of the most striking arguments below, but they are all worth reading in full (see paras 76-94).

1)      The words ‘in relation to’ are used over 200 times in the 2006 Act and there are examples where they clearly limit the meaning to a particular person or period. For example, the words ‘in relation to a person’ can only be referring to that one person. Applying the ordinary rules of statutory construction, the same words will have the same meaning wherever they are used in an Act.

2)      The administrator is only obliged to consult with parties connected to the failing trust. It would be very strange if Parliament had intended to give the Health Secretary the power to change services in the failing trust and all neighbouring trusts but then only require consultation in one of those trusts.

3)      The fact that Chapter 5A specifically allows for the transfer of the failing trust’s property to other NHS trusts is an argument in favour of Lewisham’s case, not against. The judge said that the Unsustainable Providers Regime is a ‘carefully drafted regime’; it is therefore highly significant that this power is specified but the power to change services in neighbouring trusts is not.

4)      The use of the singular in the statutory guidance strongly suggests that only changes to the failing trust were envisaged. For example, it says that trust administrators should make ‘final recommendations…about what should happen to the organisation and the services it provides.’

5)      Hunt could have used the section 8 procedure but instead he chose the Unsustainable Providers Regime. When designing this regime, Parliamentary draftsmen had to balance the requirement for speed against the significant reduction in patients’ rights to be consulted. Limiting changes to the one failing trust balances these competing interests.

The judge also discarded Hunt’s contention that his decision shouldn’t be quashed because he would have reached the same conclusion under section 8. This was dismissed on numerous grounds, most notably that the ‘four tests’ were not met as the relevant GP Commissioners did not support the reconfiguration and that the legal consultation requirements under section 8 had not been followed.

The parade on 14 September may be more protest than party, but the message to Jeremy Hunt will be clear: the people of Lewisham will fight you all the way.

Archive: Religious selection in state schools must end

*Published on Left Foot Forward on 7 August 2013

Imagine if thousands of ordinary state schools in England could refuse to admit children because their parents were practising Christians, or Muslims, or members of any other recognised religion.

Imagine the reaction if these schools could require parents, as a condition of entry, to attest in writing that they had not worshiped in a religious institution for three years, and that they would not do so again in the future.

There would be uproar, and rightly so, at the infringement of religious freedoms that this would entail. There would be stories in the press about the victims of these policies, features on Christian families who could not send their children to their local state school because they refused to give up their faith.

Yet society tolerates this situation in relation to children of non-religious parents. As the Fair Admissions campaign has highlighted so well, many state-funded religious schools can select all their pupils on the basis of religion provided that they are oversubscribed. And the better the religious school, the more likely it is to be oversubscribed.

Given what we know about religious belief and practice in England and Wales, it is likely that the majority of parents and children are adversely affected by religious selection. In aYouGov poll conducted in March 2011, 65 per cent of people answered ‘no’ to the question ‘are you religious?’

And by no means all of the 29 per cent who answered ‘yes’ to this question regularly attend a religious service. For example, a study by Christian Research in 2007-2008 documented the steady decline in church attendance in recent years, with only 6.7 per cent of the UK population regularly attending church (compared with 10 per cent in 1990).

This suggests that most parents either have their choice of schools curtailed due to their atheism, agnosticism or chosen method of religious practice (worshiping privately rather than in a church, for example), or they feel that they have to feign belief, attend regular religious services and jump through other onerous hoops, such as getting their children baptised and sending them to Sunday school, in order to get them into their school of choice.

The Fair Admissions website contains case studies the likes of which will be familiar to many: the atheist father who attended weekly Church of England services for two years so that his son could go to the state primary just across the road; the parents in a small village whose only state secondary school selects on the basis of religion and is therefore inaccessible; the parents in Richmond who are fighting a campaign against the number of selective religious schools in their area which are hampering choice for non-religious families.

The entry in the Good Schools Guide gives a revealing summary of what parents are up against:

“Some of the best UK schools have a religious foundation, and are more or less devoted to educating children of that religion. You need to start attending church weekly at least a year before conception to have a chance at some schools. The good Catholic schools are a vital component of the state school scene in such places as Central London.”

Religious selection is clearly at odds with Michael Gove and David Cameron’s ‘choice’ agenda, as it restricts the choice of the majority of non-religious parents – in some areas severely. It will also restrict the choice of religious parents if the religiously selective schools nearby select on the basis of a different faith.

However this hasn’t stopped Michael Gove approving a further 5,800 new school placeswhich are likely to be subject to religious admissions criteria.

Supporters of selective religious schools might counter that selection only kicks in if schools are oversubscribed, so more religious schools does not necessarily mean less choice for parents in the locality.

If everyone went to school in their local area then this might follow, but there are many cases of children from religious families travelling outside their catchment area to attend a specific religious school. These children get priority over local children.

It is perhaps surprising, given our increasingly secular society, that this palpably unfair system of selection still operates. There are various possible reasons for this: fear amongst politicians of offending those with deeply held religious beliefs; the organisational and lobbying power of religious groups; the absence until recently of a campaign challenging the political consensus in favour of religious selection.

It is also possible that many people think selective religious schools are funded by the relevant religious institution; it could be that many would be surprised to learn that state funds, paid for by everyone, are used in such an exclusive and discriminatory way. As Fair Admissions points out, such discrimination would be unthinkable in other public services such as social care or housing.

There is currently growing pressure on school places in England which means that frustration and anger at the current system is likely to intensify.

The recent launch of the Fair Admissions campaign, therefore, could not be more timely. Their campaign is not advocating the abolition of religious schools, just an end to selection on the basis of religion, and is supported by some religious groups and figures who want a more inclusive education system.

Ending religious selection in state schools is a policy that the Labour party should support.

It is the right thing to do, it is moderate (in contrast to calls to abolish religious schools altogether), it promises real, tangible change in an area that affects many people’s daily lives, it increases parental choice and it is likely to have widespread support. At the moment, Labour doesn’t have too many policies like that.

Archive: Free Schools: rhetoric vs reality

*Published on Left Foot Forward on 2 August 2013

In May I wrote for Left Foot Forward about the chronic shortage of primary school places in parts of England and how Michael Gove’s free school programme is making the problem even more acute.

Despite knowing about this shortage, the government has spent millions of pounds establishing free schools in areas that already have a surplus of places, while areas of shortage are under-funded, particularly London.

We are already seeing the effects, with data released in June showing a sharp increase in the number of classes with more than 30 pupils. We’ve also seen coverage on BBC London News of the growing number of primary schools forced to sacrifice playground space in order to build makeshift classrooms.

And yet the education secretary remains unrepentant. In response to the charge that free schools are not going where they are needed, a spokesperson for the Department for Education (DfE) said in June:

“The vast majority – 91 per cent – of the primary free schools approved last month are in areas of basic need. But the truth is that English schools have not been good enough for far too long. We make no apologies for encouraging new people to come forward to run free schools. The evidence proves that new schools also encourage the ones which already exist to raise their game.”

The 91 per cent figure is spurious – overall, just under a third of free schools are going to areas which don’t need additional capacity. But more significant is the suggestion from the DfE that spending on free schools is justified even where there is a surplus of places because free schools drive up standards in areas which lack good schools.

The claim that free schools are being set up in areas desperate for more good schools is often presented as established fact, along with the assertion that free schools are significantly better than other types of school.

David Cameron, for example, declared last year that free schools

“symbolise everything that is good about the revolution that we are bringing to Britain’s schools. Choice for parents, power in the hands of teachers, discipline and rigour and high quality education in areas that are crying out for more good local schools [My emphasis]“.

This was echoed by Gove in an interview with ITV in May, where he suggested that it wasn’t problematic for a minority of free schools to go to areas of surplus because free schools are ‘beacons of excellence’ and raise standards wherever they go.

Beacons of excellence?

There are currently 81 open free schools with over 200 approved to open either this year or next. The Ofsted inspection results for the first wave of free schools have just been released. Of the 24 schools, four were judged outstanding (17 per cent), 14 good (58 per cent), five were deemed to require improvement and one was inadequate.  On the basis of these results Michael Gove seems to think that he’s been vindicated.  He hasn’t.

For a start, and most importantly, it’s pretty obvious that you can’t draw any firm conclusions from 24 results. To put this in context, there are over 24,000 schools in England. But even if we accept the weight that Gove places on this data, it still doesn’t support his claims.

Comparison with other state schools is not straight forward because schools are assessed in tranches and the assessment criteria keep changing. Since September 2012, the criteria for ‘outstanding’ have changed, and we don’t yet have complete results for the 2012/13 academic year. But it is still useful to look at last year’s results, and the results we have for this year so far (after all, that is the only way we can make any comparison).

At the end of August 2012, 21 per cent of all schools in England were judged to be outstanding and 49 per cent were good. So the free school results are better in terms of schools rated good or above, but worse in terms of achieving the top grade. So much for ‘beacons of excellence’.

Looking at Ofsted’s data view, the most recent set of data for all types of state school shows that, as at 31 March 2013, 22 per cent of the schools assessed were outstanding and 57 per cent were good. These excellent figures are in part down to the large number of schools assessed which had been deemed satisfactory at their last inspection. Other indications for this year include the performance of local authority maintained schools, 70 per cent of which have been judged good or outstanding in the nine months since August 2012.

We need to wait for this year’s results in full to get a better picture, but the results so far do not support Gove’s rhetoric.

Are free schools being set up in areas ‘crying out for more good local schools’?

To test this claim I have compiled data* of local authorities in England showing the relevant measures of school performance along with the number of mainstream free schools, open and approved, per authority.

If free schools are being set up in response to a lack of decent local schools, you would expect the majority of free schools to be in local authorities whose schools have performed below the national average in recent years. You would also expect to see far more free schools being set up in the worst performing areas than in the best.

Almost the exact opposite is true.

Across all the main measures of performance, there are significantly more primary free schools going to local authorities whose schools perform above the national average than there are to those authorities with below average schools.

Further, by every measure of school performance, more primary free schools are going to local authorities whose schools are in the top ten per cent than are being set up in the bottom performing ten per cent.

For example, no primary free schools have been approved for Medway, Hull, Suffolk, Portsmouth or Peterborough, the bottom five performing authorities on the main measure of performance (percentage obtaining level 4 or above in both English and maths). Contrast this with the two primary free schools in Richmond upon Thames and the three going to Wandsworth.

The data for secondary schools is different, with a more even number of schools going to local authorities at different ends of the spectrum. For example, looking at absolute levels of performance in 2012, 61 free schools are open, or will open, in below average authorities with an identical number in above average areas. 16 free schools will go to local authorities in the bottom ten per cent, 14 to those in the top.

When you look at expected levels of performance, however, more secondary free schools are going to the top performing authorities than to the bottom; for example, Westminster and Hammersmith and Fulham get two free schools, Middlesbrough, Barnsley and Knowsley get none.

It is possible that free schools in the better performing local authorities are being set up in pockets with few good schools, but that doesn’t explain why there aren’t significantly more free schools being set up in the worst performing areas than is currently the case.

So of the government’s two main defences for setting up free schools in areas of surplus, one is totally without evidence (that free schools are ‘beacons of excellence’) and the second is demonstrably false (that they are going to areas crying out for more good schools). I’d like to think that Michael Gove will now show some humility, but I won’t hold my breath.

*Data available on request. Accurate as of 31 July 2013.