AFS0045

Written Evidence submitted by ‘Our Community, Our Schools’
 

1. Our Community, Our Schools (OCOS) is a community-based organization bringing together parents, teachers and other local residents of the borough of Waltham Forest. We campaign to promote the work of our local community schools and we are opposed to the establishment of ‘Free Schools’ in the borough.[1]

2. Our evidence relates to the process used to establish Free Schools and highlights what we view as serious democratic deficits in this process. Our experience leads us to believe that the problems with the process used to establish Free Schools makes them deeply divisive of our communities.

Legislative framework for Free Schools

3. The legislation which establishes the process for establishing a Free School is contained in Sections 9 and 10 of the Academies Act 2010. Section 10 of the Academies Act says:
(1) Before entering into Academy arrangements with the Secretary of State in relation to an additional school, a person (i.e. the person opening the school) must consult such persons as the person thinks appropriate.
(2) The consultation must be on the question of whether the arrangements should be entered into.” Section 9 of the Academies Act says that “The Secretary of State must take into account what the impact of establishing the additional school would be likely to be on maintained schools, Academies and institutions within the further education sector in the area in which the additional school is (or is proposed to be) situated.”

Meaningful consultation:

4. The QC David Wolfe has helpfully summarised what a consultation must do to be lawful a follows:
“In short, anyone who undertakes consultation must let people know what they are proposing and why, give them a chance to comment, and conscientiously take into account their responses with an open mind before deciding whether or not to do what was proposed. The basic rule is that, whether or not a public body was required to consult, if it does so, then it must comply with the following overarching obligations (unless detailed statutory rules supplant these):

• Consultation must be at a time when proposals are at a formative stage.
• The proposer must give sufficient reasons for its proposals to allow consultees to understand them and respond to them properly.
• Consulters must give sufficient time for responses to be made and considered
• Responses must be conscientiously taken into account in finalising the decision.[2]

5. In our view, our experience shows that the effect of the legislation introduced in 2010 is to allow groups setting up Free Schools to conduct performative consultations that make a mockery of the substantive requirements of meaningful consultation. We believe that the legislation allows and encourages organisations to:

• Make potentially misleading claims about the need for their schools
• Make unverifiable and potentially obfuscating claims about their consultation
• To practically determine who they consult and how they are consulted
• To consult on one extremely narrow question, allowing them to ignore objections by pursuing a simple majority vote in a constituency whose composition they have to a great extent determined in advance.

We believe that this legislative framework encourages very poor democratic practice which prejudices the outcomes of consultations and which makes a mockery of the principles of consultation and which are causing anger and division within our community.

Consultation ahead of pre-approval:

6. We believe that the system whereby the Department of Education ‘preapproves’ proposals for new ‘additional’ or Free Schools ahead of a statutory consultation is perverse, undemocratic and open to abuse. Under section 9 of the Academies Act, the Secretary of State must take account of the impact of the school on the community, yet the decision to preapprove a school is taken before the proposers of the Free Schools undertake their statutory consultation. It is entirely unclear how the Secretary of State is able to undertake an impact assessment in the absence of any consultation evidence from the proposers of the School.

7. Having accidentally discovered the existence of two proposals to open Free Schools in Waltham Forest, OCOS supporters, frustrated at the lack of information being provided, made sustained attempts to find out what consultation in the community had taken place ahead of submission to the DfE.

8. We were able to establish very few concrete details about the consultation process ahead of the DfE’s decision and our view is that the entire process of ‘consultation’ ahead of preapproval was characterized by spin and an unwillingness to disclose details. For example, in a Newsletter from December 2012, Oasis referred to ‘liaising’ with local MP Stella Creasy, who immediately contested the claim on Twitter. In a Twitter exchange from 7 December, she claimed that a meeting with local parents had been gatecrashed by a representative of Oasis. It appears that this was then spun as ‘liaison’ for the benefit of the community.

9. Supporters of OCOS then submitted FOI requests seeking details of meetings that had been held in the community, attempts to talk to stakeholders and relationships with the Local Authority. We eventually received full answers after the Department of Education had approved four proposed Free Schools’ applications. The answers we received provided very little concrete detail and left us with the clear impression that consultations had been shaped to elicit the desired result with as little debate as possible.

10. In their first response, dated 22 May, Oasis talked about ‘an 18 week wide-scale public consultation’ prior to submitting their bid to the DfE and listed meetings and letters sent without dates or specifics. Similarly, Tauheedul referred to ‘actively working with members of the local community for over 18 months in the development of our application’ and ‘engaging in regular dialogue and consultation with a whole range of individual and community stakeholders, including the Local Authority and local residents’. No further details were given. When we followed up with Oasis with a second FOI request we were sent a letter on 11 July containing a longer list of events and activities again with few specifics or dates. Notably, Oasis did not provide an answer to the question ‘Are you prepared to reconsider (amend or withdraw) your application in light of further consultation?’

11. The key point we wish to draw the Committee’s attention to is that the process as constructed makes so few requirements on organisations that without the activity of OCOS supporters in questioning these organisations about their activity, the vast majority of Waltham Forest residents, including large numbers of residents and parents directly affected by the establishment of these schools would have remained entirely ignorant of the fact that any ‘consultation’ activity was taking place at all, prior to submitting a bid to the DfE. We also have serious concerns about the nature of the consultations undertaken prior to submitting bids and would characterise them rather as campaigns geared toward gathering statements of support rather than consultations. Worryingly, these campaigns made use of incorrect and misleading information on key issues of great concern to local parents.

Misleading claims about shortfalls of places:

12. In a press release dated 6 November 2012, Oasis stated that Local Authority statistics showed that their school was necessary to make up a shortfall of places in the borough of Waltham Forest. “Planning projections for secondary school places in the London Borough of Waltham Forest show year on year increase in demand until the end of the 2023/24, with a  shortfall of 250 secondary places by 2015.16.[3]

13. Much of the case for their school appeared to rest on this shortfall and the claim that there was no alternative to the proposed Free School.

14. However, what Oasis did not mention and have never acknowledged was that the Local Authority is actively engaged in planning the expansion of existing provision to meet this demand in a coordinated way. In March and July 2013, the Council published reports that mapped the projected demand up to 2023/24. This did show a year on year increase in the demand for secondary school places until 2023/24 but it also indicated a significant drop off in the demand for primary places from 2018/19 which would subsequently be expected to be expressed later in secondary demand.[4] The July report also set out plans for addressing this. In its report in July 2013, the Council identified a shortfall in secondary places of 123 2015/6,  rather than the 250 indicated by Oasis, and they noted that this shortfall was being met by the expansion of existing high quality schools and noted that the opening of two new secondary Free Schools, as proposed by Oasis and Tauheedul would produce ‘a significant surplus of places at least until 2017’. It also expressed concern at the potential impact on quality and equality of the two proposed Free Schools.[5] In our FOI request in May 2013, we asked Oasis what evidence they had provided to people they approached to sign up for their proposal regarding current or future place shortfalls in Waltham Forest. Their reply was that they were ‘not required to provide evidence regarding current and/or future place shortfall in Waltham Forest. We believe that the parents we were engaging with were familiar with the local school place planning information and referred any questions to the local authority and other publicly available information’.

15. However, it has come to our attention that Oasis are still actively using unreferenced figures with no known provenance that seem to bear no relation to the Local Authority’s own work. On the website for their school, the claim that "There is an estimated shortfall of over 700 secondary places in the borough by 2014-2015 and our aim is to create a school which will meet this need."[6]

16. In their press statements and their leaflets Oasis made reference to Local Authority statistics and ‘estimates’ of a shortfall in a way that we believe has been potentially misleading to local parents. In fact, the only people pointing local parents and residents to the Local Authority’s figures were OCOS activists through our website and email list.

18. The Local Authority themselves appeared to be unhappy with the way in which the issue of demand for places had been used by the proposers of the Free Schools. The Local Authority wrote on November 12, 2013 that “it has been our experience that, in the absence of clear information from the Council, misconceptions regarding the need for places and the quality of existing provision can flourish. Such misconceptions then lead to inappropriate proposals such as those that recently been preapproved.” [7]

Preapproval, spin and prejudice:

19. The preapproval process allows the proposers of Free Schools to make statements which prejudice any consultation process. In May 2013, supporters of OCOS submitted FOI requests to the proposers of three Free Schools in Waltham Forest. We sought details of what consultation had taken place and what the plans were to consult in the community. The replies we received did not provide details of consultation but made it clear that the proposers were awaiting the preapproval of the Department. Oasis Community Learning wrote: “I am writing to advise you that a full response will be made after we have heard whether our application for the proposed new school has been approved by the Department for Education.” Tauheedul Free Schools wrote: “Should we receive initial approval from the DfE, the current plans are to engage in a comprehensive consultation between June and July 2013. The detailed plans will be on our website”. Notably, detailed plans were not on their website at the time the consultation was launched. To the best of our knowledge they were never on the main Tauheedul website.

20. In the immediate wake of the Department’s approval in June 2013, Oasis issued a press statement proclaiming that there would be a new school in Walthamstow.  Oasis’s press release quoted one of the parent sponsors saying: “We are delighted that our long-held dreams of opening a new community secondary school in the heart of this community have finally been realised”. Oasis have, at the time of writing, still not conducted their statutory consultation but it is clear that many people in Walthamstow believe that it is a done deal on the basis of the Department’s ‘preapproval’.

21. As we wrote at the time of the preapproval decision: ‘If full details of the two applications are not made public until after the DfE gives approval, in what meaningful sense can the DfE decision be said to take account of informed local concerns? How can the DfE show that it is aware of any concerns raised by the community in deciding whether to approve the school or not?’

Statutory consultation:

22. Only Tauheedul Free Schools have currently completed their statutory consultation. This process was also deeply flawed. For example, in an email dated 12 May 2013, Fiona McGrath, a Tauheedul representative, wrote to us to assure us that “we are aware of our obligations regarding statutory consultation. Should we receive initial approval from the DfE, the current plans are to engage in a comprehensive consultation between June and July 2013. The detailed plans will be on our website www.tauheedulschools.com.” In fact, neither the detailed plans or the consultation ever appeared on the main website and at the time of writing,  December 2013, no reference to the Walthamstow Free School can be found anywhere on their site. Instead, it came to our attention by accident that they had launched a six week consultation on a separate website in June 2013. Tauheedul claimed that the consultation was distributed to ‘local networks’, a public meeting held on 24 June, and local media. In their consultation response they claimed that ‘In order to increase reach, an advertisement was placed in the Yellow Advertiser – a local newspaper circulated to every household in Walthamstow, Leyton, Chingford, Ilford, Wanstead, Woodford, Barking and Dagenham’.[8] In fact, there are almost 97,000 households in the borough and the total circulation of the Yellow Advertiser is 15,000. Its ‘reach’ in Walthamstow is just 17% and 11% in neighbouring Leyton and Leytonstone.[9] Needless to say, this is not even close to ‘every household’. Yet the local networks and the ad in the Yellow Advertiser were the only ways of finding out about the consultation meeting held on 24 June.

23. Under pressure from ourselves and following a request from one of the local MPs Tauheedul extended the period of their consultation and received significant opposition, which they have acknowledged. However, since they are required to consult only on the question of whether they should set up a Free School and whether they should enter a funding agreement with the DfE, in their response to the consultation, published in November 2013, there is no obligation on them to reflect on any other objections or opposition raised.

24. At the time of writing, Oasis have not launched their consultation (to our knowledge) but they have advertised in the TES for a principal, stating that the school will be opening.[10] This invites the obvious question of whether any consultation they launch on the question of whether they should open a Free School can possibly be conducted in good faith.

Failure to consider Equality Impact of proposed Free Schools

25. In addition to the requirements to consult set out in the Academies Act 2010 (see paragraph 3 above), the Department for Education is also bound by Section 149 of the Equality Act 2010 (the Public Sector Equality Duty) to

a) Eliminate discrimination, harassment and victimisation and any other conduct that is prohibited by or under the Act.

b) Advance equality of opportunity between people who share a relevant protected characteristic and people who do not share it.

c) Foster good relations between people who share a relevant protected characteristic and those who do not share it.

26. In order to meet the duty, the DfE must show due regard to these three aims during the decision making process. To date, no assessment of the equality impact of the proposed new free schools has been published. Given that three of the four proposed schools are faith based and one is single-sex, there are clearly questions about how these schools advance equality of opportunity and how they foster good relations. Many local residents have expressed concern about the impact of faith based schools on community cohesion and the impact of another single sex school on existing co-educational schools where there is already a gender imbalance.

Conclusion

25. In summary, the legislation as it currently stands, coupled with the stance taken by the DfE, enables and encourages organisations to design and conduct consultations that cannot possibly fulfill the criteria set out by David Wolfe QC and therefore cannot be considered to be meaningful. Campaigns to win support among targeted populations are dressed up as consultations ahead of submissions to the DfE. The Department appears to take a decision to pre-approve the proposals on the basis of the evidence garnered by these campaigns alone and without any attempt to conduct genuine assessments of their likely equality or wider community impact. This preapproval is then used by sponsor organisations to effectively prejudice the statutory consultation, a consultation which is itself deeply flawed in being targeted and shaped around constituencies determined by the sponsors, on a timescale that suits them and on such a narrow question that there is virtually no possibility of conscientiously reflecting on or amending the proposals.

26. In our view, this is a travesty of basic democratic process. In our experience, this is one of the major reasons why our campaign has garnered such widespread support. Many people oppose the two proposed secondary Free Schools for many different reasons, but many people who hold no strong opinions on the form of a school are nonetheless incensed by the gap between the rhetoric of choice emanating from the Department for Education and the anti-democratic practices associated with the establishment of Free Schools. 

December 2013