Access to schools for education and training providers (the “Baker clause” requirement) – What schools are required to do and why they must do it.

Secondary schools and schools with secondary age pupils (excluding independent schools) are under a statutory obligation to publish a policy statement on the circumstances in which education and training providers are permitted to have access to pupils. This article sets out the school’s obligation and the risks of non-compliance.

Legislation

Section 42B Education Act 1997 came into force on 2 January 2018. It requires schools* (excluding independent schools) to ensure that there is an opportunity for a range of education and training providers to have access to all pupils in year 8 to year 13 for the purpose of informing them about approved technical education qualifications or apprenticeships.

_{*Note, the legislation specifically applies to an Academy; an alternative provision Academy; a community, foundation or voluntary school; a community or foundation special school (other than one established in a hospital); and a pupil referral unit.}

Compliance

To comply with the legislation, a school must prepare and publish a policy statement setting out the circumstances in which education and training providers are permitted to have access to pupils, and must follow the policy as stated. The policy statement must include:

• any procedural requirement in relation to requests for access;
• grounds for granting and refusing requests for access;
• details of premises or facilities to be provided to a person who is given access.

In January, the Institute for Public Policy Research published a report stating that two thirds of 101 schools did not have a compliant policy statement. In February, Schoolsweek reported that between January 2018 and January 2019 the DfE had sent letters to five of the largest Academy Trusts to remind them to comply with the Baker clause but has taken no further action.  At the end of May, Schoolsweek reported that the DfE had confirmed academies who fail to comply with the Baker clause could face action from their Regional Schools Commissioner. 

The DfE Guidance on the Baker clause states that non-compliance ought to be resolved locally but that ultimately legal powers of intervention are available to the Secretary of State for Education and may be enforced. Under its funding agreement an academy is required to operate in accordance with legislation and failure to do so could be considered a breach of its funding agreement.

Warning

Academies and the sector as a whole are subject to ever increasing levels of scrutiny from the DfE. The obligations placed upon academies under their funding agreements must be adhered to and following recent reports the DfE now appear more ready than before to intervene in the face of non-compliance.