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DfE Questions Answers (from 20 February to June 3 2013)

Q: The School Information (England) (Amendment) Regulations 2012: These regulations list the information that must appear on a school's website. They apply only to Local Authority maintained schools.

Can DfE advise:

(1) Do the requirements apply to maintained Special Schools the same way as they do to mainstream schools?

(2) Is there an equivalent requirement for Academies, and if so where is the requirement laid down?

DfE answers:

1) These regulations apply to all maintained schools, which includes maintained Special Schools.

2) New model funding agreements will require academies and free schools to publish the same information as maintained schools, including their Pupil Premium allocation, spend and impact on attainment: http:ow.lylxlk0

Q: I am a governor at a LA Community School. We set aside money we had received from the LA in our delegated budget to create a capital reserve for a new building project. We were fortunate to get BSF funding for a major school rebuilding and we used the money we had accumulated from revenue to supplement the BSF funding to get some things done which BSF didn't stretch to. The rebuilding is now complete and the LA have taken from us the agreed contribution we were making.

However, when all the sums were done we are left with a small-ish amount of Capital Surplus from the money we have been putting aside over the last 5 years and we don't have a planned capital project to spend it on (as the school has just been completely rebuilt). We'd like to use it for revenue spending this year, mainly for staff training. Can we do that? All the money originally came to us as revenue income, not as capital.

In terms of CFR headings, we made transfers out of income annually for 5 years under E30 `Revenue Contributions to Capital' and recorded it annually as Capital Income under code CI04 and it now sits in our bank account as a 201213 Capital Surplus Brought Forward balance. If we can use it revenue purposes would we have to first transfer from Capital Surplus to Income, and which CFR Income code would we use?

DfE answers:

Technically, what you have done is to declare this amount as capital by recording the revenue as already spent Under E30 (revenue contributions to capital), the income as capital under I04 and the balance as capital under B05. Since the revenue is already spent in CFR terms, for you to spend it again on revenue items would be double counting. There is no facility in CFR to declare capital balances as revenue income since that is not something we would expect to happen, capital generally being ring-fenced.

In accounting terms you have `burned your boats' and turned this money into capital. Our general advice to schools is not to declare money under E30 until it is actually spent in the outside world, so that the balance they carry forward from year to year is revenue under B01 or B02 and remains capable of being used flexibly, even if the general intention is to use it for capital purposes.

You need to seek advice from your authority's finance team as it depends what has actually been shown in the LA's accounts.

Q: I'm a Governor at an LA VAFoundation secondary school. There's a possibility that our Foundation will agree to make an annual "grant" to us for the next 10 years (possibly longer), amount tba, but a `six figure amount' each year. The Foundation is a private Charity so none of this money will come from public funds and will be entirely separate from our main income through the LA. Discussions with the Charity are ongoing but at this point it looks like we'll have reasonable amount of freedom how we use it and it won't come to us `tied' to a specific project. We understand the Charity will let us use it either to pay for revenue items (additional staffing for example) or accumulate it for a future capital project. We don't have a specific capital project planned although we have a longer-term `wish list'.

Two questions have occurred to us. Could DfE comment on these andor point us to DfE guidance that deals with the matter?

(a) If we accumulate it for a future capital project then a few years down the road it might take us over the DfE 5% `threshold' for "maximum" carry forward and at risk of a clawback by the LA if the LA aggregated the funds we get from the Charity with the funding we receive through the LA. We have a feeling though that the 5% thresholdclawback mechanism only applies to the budget share we receive via the LA and that as long as we keep the funding from the Charity separate and don't co-mingle the funds the money from the Charity doesn't get taken into account for the 5% carry forward "maximum". Can DfE confirm that?

(b) Does funding from the Charity have to be reported to the LA and accounted for within the CFR framework at all? Could we simply open a separate bank account for it and report it to governors separately? We understand that the governing body would have to ensure proper financial controls were applied to the funding from the Charity, with an independent audit, but does the LA have to know anything about the Charity's funding to us at all?DfE answers: On question 1 you need to look at the definition of balances in Consistent Financial Reporting. It does not include balances in private funds.

On question 2, this money should not be accounted for within the CFR framework but you will need to provide the local authority with an annual audit certificate for any private or voluntary fund (section 2.8 of the guidance on schemes for financing schools).

The CFR and scheme guidance documents are on the DfE website:

Q: I am the Chair of an IRP reviewing governing bodies' decisions regarding permanently excluded pupils.The DfE issued new statutory guidance from September 2012. Paragraphs 148 and 149 say an IRP can only quash a governing body decision after considering it "in light of the principles applicable in an application for judicial review" and goes on to list the principles as Illegality, Irrationality, and Procedural impropriety.

However, many education law firms have posted comments online pointing out that the principles that are applicable in judicial review have been expanded by the courts beyond these three, and in particular can now include the principle of `legitimate expectation'.

Bearing in mind the the principles of Illegality, Irrationality, and Procedural impropriety are listed only in DfE guidance and not in the underlying legislation can DfE advise:

(1) Do the DfE intend that IRPs can only apply the tests of Illegality, Irrationality, and Procedural impropriety listed in para 148, or can an IRP apply any principle that a court could consider in an application for judicial review, in particular `legitimate expectation'?

(2) If `legitimate expectation' can be considered by an IRP will DfE update paragraph 149 to give examples of when that test might be applicable in the context of an IRP?

DfE answers: Independent review panels are required to consider whether a governing body's decision was flawed when considered in the light of the principles applicable on an application for judicial review. The panels are not, however, judicial bodies. Judicial review principles are essentially about good decision making. `Legitimate expectation' is a concept developed by the courts that relates to fairness in the decision making process. The concept of fairness is already covered within the statutory guidance, which sets out that panels should consider whether the process of exclusion and the governing body's consideration was so unfair or flawed that justice was clearly not done. Consideration of factual scenarios that might give rise to what would be called `legitimate expectation' in a court would be relevant in this context.

Q: I am attempting to find out which of my students in last year's Year 11 (2011-12) received the Pupil Premium. This historical data does not appear to be on the Key 2 success website. Additionally, am I correct in thinking that for students completing Year 11 in 2012, the Pupil premium was based on FSM and not Ever6FSM?

DfE answers:

Pupil premium was introduced in April 2011and for the financial year 2011-12 was allocated in respect of pupils currently known to be eligible to free school meals (FSM). This was taken from the January 2011 school census.

From financial year 2012-13, pupil premium eligibility was extended to also include pupils who were no longer entitled to FSM but who had been recorded on a school census as being entitled to FSM in the previous six years.

Students who completed year 11 in 2012 would have been recorded on the January 2012 school census and schools would have received funding for these pupils under the financial year 2012-13 eligibility criteria (ie these students were funded under the FSM and `Ever 6' FSM conditions).

For each financial year, schools should be able to identify those pupils currently eligible for FSM using information recorded on the January's school census return, so from the January 2012 census for the 2012-13 financial year.

To assist schools identify their `Ever 6' FSM pupils, relevant to the allocation of the pupil premium from the 2012-13 financial year, the Department provided a download of pupils' FSM histories in February 2012 via the Key to Success website. The data is available in two formats: a partial Common Transfer File (CTF) which can be used to update pupil records within Management Information Systems (MIS) with historical FSM eligibility and also a CSV (Comma-Separated Value) spread sheet for easier data analysis.

The Common Transfer File (CTF) should pass between schools when pupils move and will transfer any historical FSM eligibility obtained via the download, plus any subsequent eligibility since the download. It is important therefore that schools download the FSM histories. Full guidance on the download is available on the department's website.

Once schools have imported the download into its system, if they ensure that all pupil transfers are accompanied by a CTF, then the download should not need to be repeated in the future and you will be able to use your management information system to identify previous FSM history.

In some circumstances, schools may find that a pupil's previous school did not download the historical FSM eligibility information onto their system. In this case, the school will need to download the information for this pupil (there is no new download - schools will still need to use the download provided last February).

It is also important that pupils moving between schools are accompanied by a Common Transfer File so that the receiving school has access to the relevant data. We would encourage schools to approach the previous school for the data where this has not been passed on.

Q: Please confirm that:

1. NC levels are going.2. NC levels were never intended to level individual pieces of work.3. There is no obligation from DfE to report NC levels each term.4. Progress within a lesson and over time is not purely based upon NC levels.5. Progress within a lesson and over time will be judged by the teacher using herhis professional judgement6. The teacher will make reference to the KS2 information provided but what if he feels these results did not reflect pupils' starting points?7. Should teacher base pupils' progress upon his onw initial estimation of pupils' starting points?8. What if a teacher "inherits" a class in Year 9 and the levels provided from Year 8 appear widely inaccurate?9. What if a teacher "inherits" a class in Year 10 and the levels provided at the end of Year 9 appear widely inaccurate?10. What if a teacher at KS3 feels he is able to challenge pupils way beyond the expected NC level but is penalised for this since it will not allow a linear progression?11. What if a child has high absence rates and this impacts upon the child's progress?12. What if extreme behaviour impacts upon a child's progress and the teacher, despite requests for assistance, continues to have behaviour issues with the pupil?13. What if 1 child's behaviour is having a seriously adverse effect upon the progress of the rest of the class?14. What if the expected progress figures allocated are linked to attainment in another subject, say English, and the teacher is a teacher of MFL and feels the expectations are unrealistic?15. What if the teacher feels pressure to report consistent, sustained progress according to the school's system, but in fact the pupilpupils are not making this prgress?16. What if the teacher feels pressure tom misreport the "progress" made in terms of NC levels?17. Since the NC levels have been found wanton should schools be less focuussed upon them and more focussed upon the content covered and retained by pupils?18. Please confirm that an inspector is not looking for children to have achieved measurable progress of one whole NC level within a lesson observation.19. Please confirm that neither is the inspector looking for pupils' to make a measurable sublevel of progress20. Please confirm that the inspector is looking for pupils' progress over time and that evidence of that will come from the lesson observation but also book scrutiny.21. Please explain how an inspector is likely to use reported NC levels to judge progress made.

DfE answers: We have already announced our intention to simplify the National Curriculum by reforming how we report progress. We believe that the focus of teaching should be on subject content as set out in the programmes of study, rather than on a series of abstract level descriptions. Parents deserve a clear assessment of what their children have learned rather than a `level description' which does not convey clear information. A single statement of attainment that sets out that pupils are expected to know, apply and understand the matters, skills and processes specified in the relevant programme of study will encourage all pupils to aspire to reach demanding standards. Parents will be given clear information on what their children should know at each stage in their education and teachers will be able to report on how every pupil is progressing in acquiring this knowledge. Approaches to the assessment of pupils' progress and recognising the achievements of all pupils are explored more fully within the consultation on secondary accountability and will also be addressed in the primary assessment and accountability consultation. That's all we can say at the moment - thanks for your patience as we work on this policy and take views into account.

Q: I have looked at DfE key statistics but I have not been able to find the following:

1. Percentage white girls on FSM who gain 5 A-C inc. Engmaths2. Percentage of anglo-chinese boys on FSM who gain 5 A-C inc. Engmaths3. Percentage of anglo-chinese girls on FSM who gain 5 A-C inc. Engmaths

DfE answers:

1: 35.1%2: 62.4%3: 73.6%Here are the stats in full - you want Table 2a.

Q: Everything I have seen (as a Chair of Governors) about Pupil Premium emphasises that we should be using it to close the attainment gap between FSM children and non-FSM children. The DfE website says "The Pupil Premium is additional funding given to schools so that they can support their disadvantaged pupils and close the attainment gap between them and their peers" and Ofsted say "The extra funding is made available to schools to help them narrow the attainment gap that still exists between pupils from disadvantaged and more affluent backgrounds".

The assumption from DfEOfsted appears to be that because nationally FSM children do worse than non-FSM children this gap will also exist in every school. But it doesn't, not in my school at least (and I don't think we are unique).

In my Secondary school (Good with Outstanding features at last Ofsted) we are in a deprived area and have around 50% FSM and in recent years the attainment of FSM pupils has consistently exceeded the attainment of non-FSM pupils. So the "gap" we want to close is the under-achievement of non-FSM pupils, the under-achievement of pupils who are not supposed to be supported by Pupil Premium. (Both groups are attaining above national average.)

We are aware that schools are "free to spend the Pupil Premium as they see fit. However they are responsible for how they use the additional funding to support pupils from low-income families and the other target groups" (Ofsted) but how do DfE think we should be spending Pupil Premium in our circumstances, where there is no FSM pupil under-achievement gap to close?

For example:

(1) Should we focus our Pupil Premium expenditure on widening the gap between FSM and non-FSM, ie getting FSM attainment even further ahead of non-FSM?

(2) Can we use Pupil Premium to get non-FSM pupils up to the level on FSM then move both groups forward together?

DfE answers: Thank you for query on the use of Pupil Premium funding. We are pleased to hear of the high performance by disadvantaged pupils at your school and hope you have considered entering for the Pupil Premium Awards.

You are correct that the Government is absolutely determined to close the attainment gap between disadvantaged pupils and their peers, and that is why the Pupil Premium is targeted at these pupils. In order to close the attainment gap the Pupil Premium should not be considered as another "catch up" mechanism, designed to "even things up". The national attainment gap will not close if we hold disadvantaged children back, whether to match existing local levels of performance by other groups, or for any other reason.

Not all disadvantaged pupils will be educationally disadvantaged. In this context, it is important to ensure that the Premium is working for those children who are already high achievers to raise their attainment even further.

As you are aware, the Government does not tell schools how to use the Pupil Premium and trusts head teachers and teachers to use their professional judgement to decide how best to spend the Pupil Premium based on the circumstances at their schools. Schools are, however, accountable to parents and carers for how the funding is spent and, crucially, should be able to demonstrate the impact it is having on the attainment of their disadvantaged pupils. You will also need to examine your grant agreement carefully to see whether it permits your Pupil Premium allocation to be deliberately targeted on non-disadvantaged pupils. You will also be aware that, as part of routine school inspection, Ofsted now looks at the impact of Pupil Premium spending.

You are quite rightly determined to raise the attainment of all the pupils in your school and this will be for the school's head teacher and governors to determine how this is done.

Q: I have always been told that the governing body in an LA school is the "accountable body", accountable and responsible for the running of the school and securing high standards.

I've also been told that at an academy it is the Academy Trust that is the "accountable body" not the governing body. The Trust can delegate functions to the academy's governing body but it the Trust itself remains accountable for the academy's running and standards, and for what the performance of the governing body. It's a two-tier model of governance in which the governing body is no longer the "accountable body". Is that correct?

If so does Ofsted judge the performance of the Academy Trust as well as the governing body? I realise that in a standaloneconverter academy the Trust and the governing body are often the same people so the distinction may be largely theoretical, but in multi-academies and academy chains, and even in some standalone academies, they may not be the same people at all, just a small overlap.

DfE answers: The legal responsibility for running an Academy lies with its Academy trust (including multi-Academy trusts), which will have signed a funding agreement with the Secretary of State for Education. Academy trusts, however, will delegate responsibility for the management of their Academies to governing bodies. As in local authority maintained schools, the head teacherprincipal and other staff are responsible for the day to day running of Academies.

Ofsted inspect at school level in order to judge performance and this will include Academy governing bodies. Individual Academy inspections may involve interviewing representatives of the Academy trust and they may comment on the role of the trust in their reports, but this is not a requirement. The Secretary of State will however hold Academy trusts accountable for the performance of their Academies. We would therefore expect Academy trusts, particularly multi-Academy trustschains to provide the support and challenge to each Academy to raise standards and to take action when needed.

Q: In a VA School the Governing Body is the Employer not the FoundationTrust. Is this different in an Academy; is the employer of staff the Academy Trust or the Governing Body?

DfE answers: In an Academy, the Academy trust is the legal employer of staff but staffing responsibilities are generally exercised through the governing body.

Q: Who decides the price of school meals in an LA school - Governors? Head? LA?

DfE answers: In an LA school the LA would set the price of meals, but taking into account discussion with the school.

Q: I recently attended a course on raising boys' achievement that referenced the following. My understanding was that these theories had been long since debunked amp; found to be without an empirical evidence base.

The Dept may not have made its own studies in the following however teachers from state schools are attending paying courses where these theories are being advocated.

These theories, as advocated very recently, on a course attended by state school teachers, include:

1. Braingym

2. VAK

3. Dale's Cone

4. Peer massage

5. Mehrabian communication statistics

6. Left brain v right brain learning

DfE answers: Teachers are often presented with material on brain based learning via direct mail. The DfE would rather trust teachers to teach than specify which techniques they should use, although we would say that many pseudo-science theories have gained common popularity without firm evidence bases.

Schools causing concern - Academies - LA intervention powers

Q: Can you clarify whether a Local Authority's powers of intervention if a school is causing concern apply equally to Academies and Free Schools in the Local Authority area, or only to LA maintained schools?

I have read DfE `Schools causing concern' statutory guidance to Local Authorities but I am still not clear on this.

Are there any differences in a Local Authority's intervention powers in an AcademyFree School compared to in a LA maintained school?

DfE answers: The statutory guidance referred to on schools causing concern applies to maintained schools and not Academies or Free Schools. Local authorities do not have direct intervention powers in Academies as they do in maintained schools. We do however expect local authorities keep a strategic oversight of education in their areas. If local authorities have concerns about Academies they can and should raise these issues with the Academy Trust in the first instance and escalate to the Secretary of State or Ofsted where necessary.


Q: I notice in admission code guidance that one of the excepted pupil categories is children who cannot gain a place at any other school within a reasonable distance and have moved into the area outside the normal admission range

My question is do Local Authorities decide their own definition of reasonable or is the definition a general one?-Kent use "within 45 minutes travelling distance by any form of transport" which of course could be anything up to 30 miles or so! If other counties use different criteria I would be interested to know what they are.

DfE answers: Children who move into the area outside of the normal admissions round and for whom there is no other available school within reasonable distance can be admitted above the Infant Class Size Limit as an exception. It will be for the Admissions Authority to define what reasonable distance is depending on the local context - we don't specify what `reasonable' is.

Draft School Governance (Procedures and Allowances) (England) Regs 2013 - 2

Q: I have learned that the DfE has put out for "secret" consultation the draft of proposed new regulations, The School Governance (Procedures and Allowances) (England) Regulations 2013. It's come to light because they've been posted on the website of an organisation that the DfE has allowed to see them but there's no mechanism for any response to be given. I am therefore wondering whether it is possible to ask a question about them through this Qamp;A forum and for it to be passed on to whoever in DfE is dealing with the "secret" consultation?

My question is this. In the draft School Governance (Procedures and Allowances) (England) Regulations 2013 is this paragraph concerning governing body powers of delegation: "18 (4) The governing body may not delegate functions relating to powers conferred, and the duties imposed, on governing bodies by or under regulations made under sections 35 and 36 of the EA 2002"

Can you clarify the intention of this new provision? It isn't in the current regulations. Possibly the most important regulation made under sections 35 and 36 of the EA 2002 is The School Staffing (England) Regulations 2009. What is it in the staffing regulations that the governing body can currently delegate to a committee or individual that it won't be able to when 18 (4) comes into force? The School Staffing (England) Regulations 2009 already require full governing body to decide the appointment of headteacher and deputy headteacher. Does 18 (4) mean for example that in future staff dismissal decisions can only be taken by full governing body and not by a staff disciplinary committee?

At present governors must be present in person at a governing body meeting to participate, vote and count towards the quorum. The proposed new regulations change this by adding this clause: "18 (1) Notwithstanding the requirements of paragraphs (1) to (3), the governing body may approve alternative arrangements for governors to participate or vote at meetings of the governing body including but not limited to by telephone or video conference". This power is very wide - wider than has been granted to academies - and the phrase "including but not limited to" could mean some very different ways of voting such as proxy voting. Can the DfE advise the intention and limitations of this clause, and specifically, if enacted as drafted,

(1) Would governors participating by telephone or video conference call count towards the quorum?

(2) Would this clause allow the Chair to be cast proxy votes for absent governors if the proxy vote mandate instructs the Chair to vote in a particular way?

(3) Would this clause allow the Chair to be cast proxy votes for absent governors if the proxy vote mandate allows the Chair to vote at the chair's discretion?

(4) Would an absent governor be able to submit their contribution to a debate in advance by email to be circulated at the meeting, and to cast their vote via this email?

Although proxy voting is allowed in company law and common at company AGMs the circumstances are not comparable to a governing body meeting. At a company AGM the resolution to be voted on is invariably specified in advance of the meeting and circulated to shareholders with the agenda, so shareholders know precisely what they are voting on. This would be highly unusual at a governing body meeting where the specific resolution typically emerges during the discussion at the meeting.

DfE answers: We are aiming for a short, targeted consultation on the School Governance (Procedures and Allowances)(England) Regulations 2013. To help this process we have circulated the draft regulations to members of the Advisory Group on Governance (AGOG) who are free to circulate to and seek comment from their members. AGOG advises and assists the Department, the Group provides a forum for representatives to raise and discuss issues of general principle and detail affecting school governance. Its members are drawn from a variety of governor representative organisations. We are grateful that you have brought to our attention the issue of delegation, raised in your query about regulation 18(4). The phrase "save as provided in regulations" has been omitted and will be reinstated.

In answer to your questions about the participationvoting arrangements in meetings of the governing body, we confirm that:

1. Governors participating by telephone or video conference will count towards the quorum.

2. The chair will not be able to cast proxy votes for absent governors.

3. Again, the chair will not be able to cast proxy votes for absent governors.

4. An absent governor would be able to submit their contribution to a debate in advance under the circumstances that you have outlined. This would be allowed only where such arrangements were agreed in advance of the meeting.

Thank you for your providing us with your comments.

Read the Qamp;As from 3rd December to 20th February here

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