LG 5 - Estyn

National Assembly for Wales Consultation - Proposed Local Government Measure Committee

(Saesneg yn unig)

Response from Her Majesty’s Chief Inspector of Education and Training in Wales.  Estyn.

Introduction

I am pleased to provide the following general and specific comments in response to the consultation on the above proposed Measure.

General Comments

Estyn broadly welcomes the proposals outlined in the Measure and their potential impact on the improvement of public services.

Proposed Local Government (Wales) Measure - consultation questions

- Is there a need for legislation to reform:
- the statutory basis for service improvement by local authorities; and
- community planning and strategies?

I believe that the proposed Measure is supportive of the National Assembly’s drive to bring about continuous improvement as an integral duty of local authorities.

The move towards driving continuous improvement in services and functions rather than the strong current emphasis on eliminating risk is helpful.  Concentrating on eliminating risk will not necessarily ensure that all services innovate and drive towards the highest levels of performance. .  

I support the Measure’s reinforcement of the need for more effective collaboration amongst inspection, audit and regulatory bodies in delivering their activities.  

Estyn already collaborates with other inspectorate, audit and regulatory bodies in the delivery of its inspection programme, including in the inspection of local authorities, and in delivering thematic reviews undertaken through our remit from Welsh Ministers.  We have memorandum of understanding and partnership agreements with the Wales Audit Office, the Care and Social Services Inspectorate for Wales (CCSIW), OFSTED, HM Inspectorate for Probation and HM Inspectorate for Prisons.  We are developing formal arrangements with Health Inspectorate Wales, building upon recent joint work on Child and Adolescent Mental Health Services in Wales (CAMHS), to jointly inspect hospital education which is a local authority responsibility.

Over the past few years, inspectorate, audit and the regulatory bodies have made great strides in achieving increased coordination through voluntary cooperation and through liaison with the WAO Regulatory Manager for each local authority.

This cooperation, through these formal and informal arrangements, enabled us to develop joint approaches to inspection activity where appropriate and negotiate changes to programmes where necessary.  However I agree that there is scope for further improvement and a statutory duty on inspectorate, audit and regulatory bodies to cooperate and collaborate where appropriate in their activities would be helpful.

- How will the proposed Measure change what organisations do currently and what impact will any such changes have in terms of service improvement and community planning?   

The Measure has the potential to support greater innovation in service delivery by focussing the attention of local authorities on setting performance objectives and publicly reporting progress in meeting these objectives.  The development of a public accountability and monitoring framework that judges and reports on the impact of key performance objectives in bringing about improvements for citizens should prove to be a powerful driver in service improvement.  

I welcome the duty placed on authorities to compare their performance across time and with other authorities.  Benchmarking is a very powerful driver for improvement and enables authorities to identify and share good practice. To support this process, I believe the Welsh Assembly Government should very actively support the development and exchange of high quality, nationally consistent benchmarking data on key issues in education, children’s services and other areas of local authority operation.

- Are the sections of the proposed Measure appropriate in terms of reforming the statutory basis for service improvement by local authorities and reforming community planning and strategies? If not, how does the proposed Measure need to change?

As I indicated earlier, I believe the proposed Measure should be helpful in reforming the basis for service improvement.  However the scope and quality of subsequent guidance material will be critical in explaining the detail of the Measure and the way in which local authorities will implement the legislation.

At a drafting level, I have serious concerns about the way in which the intention of Clause 19 of the Measure is expressed. Whilst I support the intention of ensuring cooperation across inspection, audit and regulatory bodies, the clause currently proposes that the Auditor General should be given powers to ‘require’ HMCI  to provide the Auditor General with reports and the Auditor General has powers to give instructions as to the form content of the reports to be furnished.

I believe this approach is inappropriate and unnecessary in order to achieve the intended purpose. It is at odds with the Explanatory Notes at Appendix 1 to the Explanatory Memorandum to the Measure, which refers to the regulators “co-ordinating their activities” and “assisting” the Auditor General.

More importantly, however, it fails to recognise that the office of HMCI has an equivalent independent status to that of Auditor General

HMCI is appointed by Order in Council on the advice of the Secretary of State (see s.19 Education Act 2005). Likewise the Auditor General for Wales is appointed by the Crown on the advice of the Welsh Ministers (see s.90 Government of Wales Act 1998). The office of HMCI is thus an independent inspection body, whose independence is signified by the Crown appointment. In this regard its status is comparable to that of the Auditor General for Wales.

HMCI has considerable latitude in discharging the inspection function in relation to LEAs but must inspect if requested by Ministers (see s.38(1) Education Act 1997). Whilst being fully committed to the importance of better coordinating the planning of inspection activities across inspection, audit and regulation activities, I believe the way clause 19 is currently phrased risks creating an unhelpful inconsistency with the need for me to maintain the ability to respond to urgent or unscheduled priorities, including Ministerial requests.

I believe this issue can be easily resolved, however, whilst still maintaining the intention of the proposed legislation. I suggest that clause 19 should be redrafted in terms of:

a) a right on the part of the Auditor General to request the co-operation and assistance of the relevant inspectorates, audit and regulatory bodies in informing the Auditor General of their findings when inspecting a Welsh improvement authority.

b) a duty on Estyn and the other relevant inspectorates, audit and regulatory bodies to co-operate with and provide assistance to the Auditor General so far as reasonably practicable.

I am content with Clause 22 as the duty it places on me to inform the Auditor General mirrors other existing reporting obligations of Her Majesty’s Chief Inspector of Education and Training in Wales (HMCI) e.g. the duty to inform the Ministers is any school is failing under s.37 of the Education Act 2005.

- What are the potential barriers to implementing the provisions of the proposed Measure (if any) and does the proposed Measure take account of them?  

In relation to Estyn, there may be an issue to consider in relation to the timetabling of the inspections of the other services that are subject to Estyn inspection.

Clause 24 of the Measure should expressly recognise that the timetables and resources of inspectorate, audit and regulatory bodies may be constrained by their own timetabling obligations, hence the suggestion that the obligation to co-operate assist proposed in relation to clause 19, as an alternative to the present draft, is couched in terms of “so far as reasonably practicable”.  Estyn has differing timing obligations in relation to its inspection obligations for different sectors that impinge on the work of local authorities.

Another consideration which may affect the duty to coordinate is that the Measure can only apply to inspectorate and regulatory bodies’ use of their powers relating to devolved functions, whereas some inspectorate and regulatory bodies have powers stemming from UK legislation that would not be caught by the coordinating powers proposed for the Auditor General by the Measure.  In the case of Estyn, we inspect jointly with OFSTED, HM Inspectorate of Prisons and HM Inspectorate of Probation which are England and Wales-wide bodies.

5.What are the financial implications of the proposed Measure for organisations, if any?  In answering this question you may wish to consider whether you agree with section 6 of the Explanatory Memorandum accompanying the proposed Measure and, in particular, the statement that "The provisions of the proposed Measure do not give rise to any administrative, compliance or other costs”.

Whilst there may be some minor resources implications for Estyn in terms of meetings and liaison with other inspection, audit and regulatory bodies bodies, provided that the agreed mechanisms for improving cooperation between do not generate substantial amounts of new bureaucracy I would not anticipate the measure creating substantial new costs for Estyn.

6.Are there any other comments you wish to make about specific sections of the proposed Measure?

In relation to clause 16(2)(a)of the Measure, the functions of other bodies are functions of inspection and investigation. The use of the expression “regulator” seems inappropriate for such functions, and it is not appropriate to describe Estyn as a regulatory body.  Estyn’s does not regulate either local authorities or the services that it inspects, rather we report our findings, highlight strengths and weaknesses and make recommendation for improvement.  It is for the Ministers, local authorities and the services themselves to act on HMCI’s findings and recommendations.  It is suggested that “inspection, audit and regulatory bodies” would be a more accurate term to use throughout the Measure.