2019 Spring Term 1

NEWS AND GUIDANCE

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News and guidance

ASCL Influence

ASCL Director of Policy Julie McCulloch highlights some of the work we’ve been doing on your behalf to influence government policy. Expand

ASCL Director of Policy Julie McCulloch highlights some of the work we’ve been doing on your behalf to influence government policy.

Consultation responses 

We have recently responded to the following consultations and inquiries: 

  • Ofqual’s consultation on future assessment arrangements for GCSE computer science 
  • the DfE’s consultation on relationships, sex and health education 
  • the Treasury’s call for evidence ahead of the 2018 budget

Our consultation responses are all available on the ASCL website: www.ascl.org.uk/policy/consultation-responses

Key areas of focus

1 Funding

ASCL’s Funding Specialist Julia Harnden gave oral evidence to the Education Select Committee’s inquiry into school and college funding, following our written submission to the inquiry in May. It has become increasingly apparent, through this and other discussions with policymakers, that we, as a sector, need to be clearer about what the national ambition for education should be, and the level of investment required to make this happen. 

We will be working with a range of experts over the next few months, ahead of the Comprehensive Spending Review, to more clearly quantify the increase we are calling for to enable our schools and colleges to deliver the education our young people deserve. 

Alongside this work, and as you will have read on page 4 in ASCL General Secretary Geoff Barton’s article, we consulted members on how you want us to campaign on school and college funding

We are currently in discussion with the Education and Skills Funding Agency (ESFA) about the proposal that trusts requiring additional, recoverable long-term financial support may be asked to sign a qualifying floating charge (QFC) to secure the arrangement. We have produced an information paper for members on this, see www.ascl.org.uk/QualFloatingCharge 

For many trusts, the release of funds awarded under the MAT Development Improvement Fund (MDIF), has been conditional on an independent financial review. Following discussions between ASCL and the ESFA, some trusts are also able to utilise the MDIF financial review fund to cover the costs of training to embed integrated curriculum financial planning into their strategic planning processes. We are pleased to have been able to influence the interpretation of the condition of grant to the benefit of trusts and their constituent academies.

Following our successful summit on Integrated Curriculum Financial Planning (ICFP) in October, ASCL continues to be a key player in this policy area. We have presented at an ESFA regional event on effective resource management and are being informally consulted on DfE/ESFA tools to support ICFP.

2 Accountability

We are in regular dialogue with Ofsted on the development of the 2019 inspection framework. We used our autumn Regional Information Conferences to gather members’ views on the emerging details of the new framework, and we are ensuring Ofsted is aware of these. Accountability in general, and the new framework in particular, will be the main focus of our February ASCL Council meeting. 

Stephen Rollett, our Curriculum and Inspection Specialist, sits on Ofsted’s curriculum advisory panel. We have also provided feedback to Ofsted on the new Inspection Data Summary Report

This autumn, we launched our ‘Forgotten Third’ Commission, to explore why a third of young people leave school without a meaningful qualification in English language, and to make recommendations on how this might be improved. See page 18 for more on this from the Chair of the Commission, Roy Blatchford. 

We are working with the DfE accountability team to shape the upcoming consultation on the floor standards and coasting measure. Last year, the Secretary of State announced that these two measures would be replaced with a single trigger for intervention and support. We are in discussions with the Department about the pros and cons of different approaches and expect to see a formal consultation early in the new year. 

Qualifications Specialist Suzanne O’Farrell has been working with the Joint Council for Qualifications (JCQ) and awarding organisations on proposed changes to conflict of interest declarations. As a result of this work, JCQ will shortly issue a set of FAQs to clarify and simplify this, and will include more detailed explanations in the 2019/20 general regulations. 

Suzanne is also involved in several groups considering the future of modern foreign languages at both primary and secondary level.

3 Recruitment, Retention and Workload

The Teacher Workload Advisory Group, of which General Secretary Geoff Barton was a member, published its final report, focused on reducing unnecessary workload associated with data and evidence collection. 

We continue to engage with the DfE over the development of the early career framework for teachers. 

We are also providing detailed feedback to the DfE on its draft teacher recruitment and retention strategy.

4 System Governance and the 'Middle Tier'

ASCL President Richard Sheriff, Vice President Rachael Warwick and General Secretary Geoff Barton recently met a group of senior servants to share concerns about the disjointed nature of the current ‘middle tier’ and to start to consider some alternatives. 

We are in the process of arranging a similar meeting with the Shadow Secretary of State and her team.

5 Ethical Leadership

We are continuing to engage with the Timpson review of school exclusions, through former Deputy General Secretary Malcolm Trobe’s role on its advisory panel. The review intends to publish its recommendations early in the new year. 

Our Ethical Leadership Commission met for the final time in September. We will be holding a summit in January to formally launch the outputs of the commission, including a framework for ethical leadership in education, a set of resources for governing boards to audit their ethical practices and a new ethics forum to be created under the auspices of the Chartered College of Teaching.

6 Post-16 Education

Schools have come under recent criticism for not allowing access by FE colleges and other training providers to their Year 10/11 pupils, to inform them of other post-16 options (or post-14 for university technical colleges (UTCs). Our Post-16 and Colleges Specialist, Kevin Gilmartin, along with three ASCL members, attended a roundtable meeting with DfE ministers Anne Milton and Lord Agnew. This was a good opportunity to put forward the other side of the argument, and to make it clear that any moves to impose penalties or sanctions on non-complying schools would be both unworkable and damaging for school morale and relations with the DfE and other parts of the sector.


Julie McCulloch
ASCL Directory of Policy
@juliecmcculloch

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ASCL Wellbeing Zone

It’s often difficult to find the time to look after your wellbeing so to help you, we are delighted to offer all our members free access to the ASCL Wellbeing Zone which is provided by Revitalised. Expand

It’s often difficult to find the time to look after your wellbeing so to help you, we are delighted to offer all our members free access to the ASCL Wellbeing Zone which is provided by Revitalised.

The ASCL Wellbeing Zone is an online health and wellbeing resource that offers you a combination of personally tailored programmes, general health information and support. 

Access your personalised health and fitness plan, as well as the latest wellbeing tips and advice, and see what great discounts are available too. Simply visit www.ascl.wellbeingzone.co.uk and enter your username and password via the login tab. If you don’t yet have a username and password, you can click ‘Sign Up’ and enter the following organisation code to get started: ASCL1 

If you’d like to learn more about the Wellbeing Zone and how it could be available to your entire school community, please visit www.revitalised.co.uk or email enquiries@revitalised.co.uk or call 01480 464647.

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ASCL Benevolent Fund

The ASCL Benevolent Fund ( Expand

The ASCL Benevolent Fund (ABF) is an important element in the Association’s policy of providing protection and care for all its members, past and present, and their dependants.

While most members, active and in post, are unlikely to need help, a serious accident, redundancy, chronic illness or disability can change the situation quite traumatically. Whether it is a short-term financial crisis or a long-term problem, the fund stands ready to help. If you know someone who may benefit from the fund or if you think that you would benefit yourself, please call 0116 299 1122 or find out more online at: www.ascl.org.uk/benevolentfund

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Ofsed report fails to acknowledge funding crisis

Responding to the report by Her Majesty’s Chief Inspector ( Expand

Responding to the report by Her Majesty’s Chief Inspector (https://tinyurl.com/ydf7bcgn), in our press release, Stephen Rollett, ASCL Curriculum and Inspection Specialist, said: 

“Amanda Spielman is right to say that some young people have the deck stacked against them, but we wish she would acknowledge that the totally inadequate level of funding in schools and local support services is undermining efforts to improve their life chances.” 

SEN support 

“Schools are working tirelessly to provide the most vulnerable children in our society with the education they need and deserve in the face of significant budget cuts as well as the erosion of local services for families and children. These funding pressures make it more difficult to give children the individual support which is so important in helping them to overcome learning challenges. And it means that schools are less able to put in place the early intervention which prevents challenging behaviour escalating to the point of an exclusion. Schools are doing their very best for children with special educational needs but are being expected to do more with less.” 

Stuck schools 

“These schools are often badly affected by nationwide teacher shortages making it extremely difficult for them to secure sustained improvement. They also suffer from the impact of an accountability system in which the dice are loaded against them. School performance measures and Ofsted inspections are themselves part of the problem. They stigmatise schools which makes recruitment even more difficult, and leadership a precarious business. Part of the solution needs to be a new and less severe approach to accountability.” 

Off-rolling 

“The vast majority of school leaders deplore off-rolling and will welcome any action to crackdown on this unacceptable practice. It is important, however, that data on high levels of pupil movement is used as the starting point to a conversation and that inspectors don’t go into schools with a pre-conceived notion. We are reassured by the approach outlined in Ofsted’s annual report, but we will need to see how this works in practice.”

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Staff wellbeing resource

The Anna Freud National Centre for Children and Families has published a new resource – Ten Steps Towards School Staff Wellbeing ( Expand

The Anna Freud National Centre for Children and Families has published a new resource – Ten Steps Towards School Staff Wellbeing (www.annafreud.org/schoolstaffwellbeing).

The resource follows a consultation on staff wellbeing to which 684 people responded, and a survey that received more than 2,400 responses. 

The resource, co-produced by school staff, aims to support senior leaders in schools to promote wellbeing. It also aims to reflect on the concerns raised, share best practice case studies of approaches adopted by schools and raise questions for consideration so that school leaders can think about the way forward in their settings. Please also see the booklet, Supporting Staff Wellbeing in Schools (www.annafreud.org/tmhstaff), which aims to give school staff guidance and good practical examples where schools have successfully implemented wellbeing strategies.

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Investigations must follow a fair process

A recent case at the employment tribunal has highlighted the need for employers to evidence that they have appropriately investigated matters before making decisions in relation to termination of employment. Expand

A recent case at the employment tribunal has highlighted the need for employers to evidence that they have appropriately investigated matters before making decisions in relation to termination of employment. 

The case concerned a care worker who was dismissed following allegations of raping a colleague and sexually assaulting two others. The care worker was awarded £15,000 after the tribunal found that the employer’s investigation was “woefully inadequate”. The employee denied the allegations and the tribunal found that the employer had not adequately investigated the concerns given the very serious nature of the allegations. 

For a dismissal to be fair, the employer must follow a fair process and act in accordance with the ACAS Code of Practice. A fair process would include an investigation that is proportionate to the allegations being made. A reasonable disciplinary policy would also make reference to an investigation taking place when allegations are made. Our top tips for considering reasonable investigations include: 

Conducting the investigation

  • Think carefully about who investigates the concerns – are they appropriate? Are they unbiased? Have they had any prior involvement with the case? Do they have the necessary skills? 
  • Think about scoping out who will need to be interviewed based on the allegations made. Make sure the investigating officer asks the witnesses if they should speak with anybody else who may have relevant evidence and follow this up. 
  • Think about what methodology will be used: face-to-face interviews, telephone interviews, review of CCTV, review of written records. 
  • Make sure that the investigation seeks to find evidence that tells both sides of the story. 

The investigation report

  • Make sure that the allegations are succinct where possible. 
  • Use your disciplinary policy and code of conduct to refer back to where the employee has potentially breached them, that is, your examples of misconduct and gross misconduct in your disciplinary policy. 
  • Think about how the evidence is to be presented – will it be in a written report including statements? 
  • Make sure that the investigation report is confined to the allegations being made and does not stray off course into irrelevant matters. 
  • Make sure that the report is reader friendly. Remember, the disciplinary panel will know nothing about the context/history so make sure this is clear. 

Witnesses

Make sure that all parties are aware that they may need to give their evidence at a disciplinary hearing. 

If they request anonymity, you can offer this as far as possible, but do not guarantee it because this may make it difficult in later proceedings, if the employee who faces allegations, wishes to exercise their right to reply to a witness if they don’t know who has given that evidence.

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New guidance on closure of academies by mutual agreement

The DfE recently updated its well-used guidance, Making Significant Changes to an Open Academy ( Expand

The DfE recently updated its well-used guidance, Making Significant Changes to an Open Academy (https://tinyurl.com/y9vx76cw). The latest version (October 2018) includes new departmental advice for academy trusts considering closing an academy by mutual agreement.

Although actual closure of an academy, as opposed to re-brokerage, is still relatively rare, it is certainly not unheard of, particularly in the arena of free schools, studio schools and university technical colleges (UTCs). The advice is clearly intended to cover closure by mutual agreement only, rather than closure scenarios that may arise through giving seven years’ notice under the terms of the funding agreement, or the Secretary of State using its statutory or contractual powers to terminate the funding agreement. 

The guidance is helpful in setting out key questions for an academy trust to consider as part of closure discussions and lists practical requirements relating to final accounts. It also sends a very direct message that the involvement of the relevant local authority in any closure decision is essential. This is with particular reference to the local authority’s responsibilities for local place planning. 

The guidance identifies six stages to the closure process, reflective of the fact that this type of closure situation will not occur overnight and an extended period of dialogue with the regional schools commissioner (RSC), local authority and stakeholders is expected. While a step-by-step approach is welcome in ensuring consistency and transparency around such closure decisions, there are still potential stumbling blocks for academy trusts and we recommend, as does the DfE, that they seek legal advice before embarking on any formal closure process. For example, some of the guidance on conducting a “time-bound listening period” does not sit squarely with public law principles around consultation. 

Most academy trusts will, it is hoped, not have cause to refer to this new guidance but, given that the closure of an academy is rarely uncontroversial, if they do, they should review the process carefully and ensure that they have proper legal and accounting support.

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Disruptive students

The DfE statistics for exclusions ( Expand

What is the position if a student becomes increasingly disruptive in class to the extent that they are unteachable in the opinion of the class teacher? Where is the line drawn and when is it crossed?

The DfE statistics for exclusions (https://tinyurl.com/y756cnhr) records that there has been an increase in 2016/17 for students who have been permanently excluded for persistent disruptive behaviour. It is by far the most common reason for both permanent and fixed-term exclusions and has seen a significant growth since 2015/16. There has also been an increase in the number of students excluded for physical assaults on members of staff and other students. So, what can teachers do in this situation? 

The fact is that teachers have no formal right to refuse to teach a disruptive student or pupil. If a teacher refuses to teach, it is in effect industrial action and very much an action of last resort. Of course, there are behaviour strategies and interventions that can be used in the first instance but, in the end, the principal/ headteacher has a decision to make: Is the behaviour of the student endangering themselves or others? If so, then it is not safe to have the student in the classroom. 

The employer owes a duty of care to its staff in the same way that it owes a duty of care to other students and the culprit themselves. The employer also has a statutory obligation under the Health and Safety at Work Act 1974, to protect the health, safety and welfare of their employees. This may be physical safety as well as mental health, including workplace stress. 

Where there is a difficult student, a Risk Assessment needs to be carried out to enable a considered response and assessment of the resources available and to assess whether any reasonable adjustments can be made that would alleviate any difficulties. In the end, the employer must make the decision as to whether it is too dangerous to have the student in school or not, and if it is too stressful or difficult for one member of staff to deal with them, then it is probably not safe for others either.

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Donation policies

With school budgets under greater pressure than ever before, schools are turning to alternative fundraising streams to purchase much-needed equipment and facilities. Expand

With school budgets under greater pressure than ever before, schools are turning to alternative fundraising streams to purchase much-needed equipment and facilities.

One of these additional sources of income is public donations from parents, members of the community or former staff and students. 

However, public donations can bring their own problems: money is rarely given without conditions being attached, conditions that are sometimes difficult or even impossible to comply with. Schools may fundraise for a particular piece of equipment but fail to raise sufficient funds, and then be unclear as to whether the donations made need to be returned. Additionally, donations are sometimes made by high-profile individuals or organisations that the school may be uncomfortable having links with due to conflicts with ethos. What should schools do in these situations? 

Maintained schools (with the exception of community and community special schools) and academy trusts are charities and are therefore required to have a policy on administering donations and when to accept or refuse them. Additionally, academy trusts are required by their funding agreements to have a policy in place from the creation of the first academy. 

Although there is no ‘one-size-fits-all’ approach, schools and academy trusts should consider addressing the following common issues in their policy: 

  • how donations will be administered when received 
  • what to do when an appeal raises insufficient funds 
  • when donations should be (or can be) refused due to onerous conditions 
  • when donations should be (or can be) returned to donors 

Often the policy will need to direct the school to obtain legal advice and/or obtain the consent of the Charity Commission to ensure compliance with charity law and guidance. This area of law is closely regulated and there are often processes that must be followed before money can be returned or used for an alternative process. 

Practical and helpful guidance has also been published by the Institute of Fundraising and is available online at: https://tinyurl.com/ybybuudy

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Unregistered schools

Recently, the government won its first case against an unregistered independent school, the Al-Istiqamah Learning Centre, as under section 96 of the Education and Skills Act 2008 ( Expand

Recently, the government won its first case against an unregistered independent school, the Al-Istiqamah Learning Centre, as under section 96 of the Education and Skills Act 2008 ('ESA 2008'), it is a criminal offence to operate an independent school that is not registered. 

This prosecution has been widely regarded as the test case for such prosecutions. The government is keen to clamp down on these illegal operators, with many ‘institutions’ under investigation by Ofsted. However, it is the DfE and Crown Prosecution Service (CPS) that make the decision to prosecute based on a body of evidence provided to them. 

A key element of the case centred on whether this school offered ‘full-time’ or ‘part-time’ education. There is no legal definition of ‘full-time’. Guidance on the definition is in the registration packs for independent schools with ‘full-time’ generally considered to be more than 18 hours per week. 

Many proprietors of these establishments claim that they only offer ‘part-time’ education and therefore are not required to register their setting. When inspected, it was clear that the pupils at this particular school attended to such a degree that it “precluded full-time education being provided elsewhere”. Alongside other requirements set out in sections 98 and 99 ESA 2008, this meant that the establishment should have been registered with the DfE as an independent school. There are also a number of other factors the DfE will consider when consenting to a prosecution, including the level of risk to the welfare of the children and suitability of the proprietor to be involved in providing education. 

It had previously been thought that prosecutions were not being pursued by the DfE because the evidence base was weak. This was due to these ‘schools’ operating on the cusp of the law. However, Ofsted and its taskforce have been given further funding and are working hard to ensure that they are compiling sufficient evidence to take more cases to formal prosecution. 

The DfE and Ofsted have inspected a significant number of suspected ‘illegal schools’ and have issued a number of warnings. This has resulted in some establishments ceasing to operate and many taking action to comply with the requirements set out in legislation. 

However, there are still a significant number of ‘schools’ that continue to operate illegally, putting many pupils at risk. This case is clear evidence that the seriousness of pupils being taught in these unregistered settings has been recognised.

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Changed jobs over Christmas?

If so, make sure you don’t miss out on the latest information and tell us of any change in job title, school/college address, home address and email. Expand

If so, make sure you don’t miss out on the latest information and tell us of any change in job title, school/college address, home address and email. You can change your personal information online; simply log on to www.ascl.org.uk using your password and then click on ‘edit your details’ (in the gold ‘my account’ box on the left-hand side) and update your details.

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New preferred supplier

ASCL is pleased to announce a new preferred supplier, Langley, the UK-based leader in waterproofing and roofing systems. Expand

ASCL is pleased to announce a new preferred supplier, Langley, the UK-based leader in waterproofing and roofing systems.

Langley does more than just specify solutions for leaking roofs; its service extends to comprehensive and proactive roof asset management.

ASCL is pleased to announce a new preferred supplier, Langley, the UK-based leader in waterproofing and roofing systems. Langley does more than just specify solutions for leaking roofs; its service extends to comprehensive and proactive roof asset management. Langley provides comprehensive roof inspections for a hidden and out-of-sight asset, offering reassurance that sometimes no remedial work is required. Alternatively, it provides extensive condition survey reports backed by photographic evidence in support of when roof refurbishment is required or recommended. 

Langley undertakes an end-to-end approach to every project and offers a single-source liability for every aspect of your roof project, from initial consultation through to design, material and workmanship, and from final installation, after-care and maintenance. 

Cost certainty is an important element of the management of an educational estate and as your chosen roofing partner Langley’s extensive knowledge and expertise ensures that you can trust it to design, install and support a solution that will deliver excellent long-term value with guarantees of up to 30 years. 

To find out more, please visit: www.langley.co.uk

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Related party transactions

There have been several media stories recently about commercial relationships between academy trusts and related parties, with a number of newspaper reports and television programmes painting elements of the academies sector in a bad light. Expand

There have been several media stories recently about commercial relationships between academy trusts and related parties, with a number of newspaper reports and television programmes painting elements of the academies sector in a bad light. 

Related party transactions arise where one party has control or influence over the other, or where the trading parties are subject to common control. Charity law, an academy trust’s Articles of Association and the Academies Financial Handbook, set the rules out in detail but it can be summarised as an academy trust having a commercial relationship with any sponsor, member or trustee, or any party closely connected with that individual/entity (such as a family member, business associate or company controlled by the sponsor/member/ trustee/family member). 

In order to comply with the myriad of regulations that govern related party transactions (as well as the media glare) academy trusts should determine a global approach to what its policy should be towards related parties. 

One option is to take a zero-tolerance approach, which prohibits any kind of related party transaction at any level of governance. While this approach ensures compliance, applying this principle could potentially significantly reduce the pool of expertise and skills that a trust is able to call upon. 

An alternative approach, which would ensure that any potential members and trustees are not automatically discounted, is to allow a limited level of related party transactions but make sure that robust procedures are put in place to ensure that any potential regulatory issues are dealt with proactively and swiftly. 

The approach taken will depend on the culture and attitude of the academy trust towards risk, but we would recommend, whatever the approach, it is taken in an informed manner and is consistently and evenly applied.

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Notes on guidance

Leader contains general guidance on the law that has been supplied by our Premier Partner for legal and HR services, Browne Jacobson LLP. Expand

Leader contains general guidance on the law that has been supplied by our Premier Partner for legal and HR services, Browne Jacobson LLP. If you would like to seek advice from a legal professional please contact Browne Jacobson at 0370 270 6000. ASCL members can also call the ASCL Hotline on 0116 2991122 for support on legal issues relating specifically to their own employment.

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Adding value

School leaders are constantly looking at ways to improve and enhance the performance of their students. Expand

Can the humble exercise book be the answer to improving students’ performance?

School leaders are constantly looking at ways to improve and enhance the performance of their students. The answer may be closer to home than you think. 

By adopting the use of exercise books that are completely personalised to your school, there are distinct advantages that you and your students can benefit from: 

  • Each page can be designed to your school’s exact requirements. You can include course descriptors and subject specific targets, so these are always visible to students. 
  • Course notes that would otherwise be photocopied (and could perhaps be lost by students) can be printed within such exercise books. 
  • The ability to produce exercise books with up to 200 pages, allows for all the year’s work to be in one place. This really helps students to revise for examinations and tests. 
  • ASCL members who have adopted such exercise books have reported an improvement in the quality of the work that their students are producing. 

hdc is an ASCL Preferred Supplier and offers advice and help to all members in the area of personalised exercise books. Call 0141 812 0199, email sales@hdc-uk.com or visit www.hdc-uk.com/products/exercise-books for more information.

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In the news

ASCL has been quoted widely in the media over the recent period on a range of issues. Expand

ASCL has been quoted widely in the media over the recent period on a range of issues.

ASCL’s response to Her Majesty’s Chief Inspector’s (HMCI’s) annual report, in which we urged Amanda Spielman to acknowledge the impact of the funding crisis after she highlighted shortcomings in local area special educational needs and disability (SEND) provision, was quoted on BBC Radio 4’s Today programme, TES and others. 

ASCL Vice President Rachael Warwick talked on Radio 4 Woman’s Hour about the pressure on SEND funding. We welcomed the Education Secretary’s subsequent announcement of an additional £350 million to support children with special educational needs. We said that while it was not enough it was a step in the right direction. 

We called on universities to make fewer unconditional offers after Universities and Colleges Admissions Service (UCAS) figures showed that a third of 18 year-olds received them in 2018. We warned that this practice could demotivate students and lead to them underachieving in their A levels. The story, and our comments, featured widely in the national, regional and specialist press, and in BBC radio news, including an interview with General Secretary Geoff Barton on Radio 2’s Jeremy Vine Show. G

eoff and members of our policy team wrote articles on a range of subjects in Schools Week, TES and SecEd. These included Geoff’s response to a speech in which Academies Minister Lord Agnew bet headteachers a bottle of champagne that he could find savings in their school. Geoff’s column was entitled: ‘I bet Lord Agnew a bottle of Liebfraumilch that I can find savings in the DfE’ and can be read by visiting https://tinyurl.com/y9f5323m

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LEADING READING