Case reference:             STP000167

Referral body:              Torbay School Organisation Committee

Statutory proposal:         To establish a nursery class at Shiphay
                            Primary School, Torquay from 11 April 2005

Date of decision:           27 May 2005


Under the powers conferred on me by Schedule 6 to the School
Standards and Framework Act 1998, I hereby approve the proposal,
subject to the modification that the date of implementation should be 1
September 2005.

The referral

1.      The Secretary to the Torbay School Organisation Committee (“the
SOC”) wrote to the Office of the School‟s Adjudicator on 23 March 2005 to
refer for adjudication a proposal published by Torbay Council (“the Council”)
to establish a nursery class at Shiphay Primary School (“the school”) from 11
April 2005.


2.     On 18 January 2005, the Council published a proposal under section
28(1) of the School Standards and Framework Act 1998 (“the Act”), to
establish a nursery class of 26 full time equivalent places (in practice, 52 part-
time places) at Shiphay Primary School, Torquay. The published notice was in
the form required by section 28 of the Act.

3.      The SOC considered the proposal at its meeting on 15 March 2005 but
did not reach a unanimous decision. The case was therefore referred for
adjudication in accordance with paragraph 3(6) of Schedule 6 to the Act. I am
satisfied that I have jurisdiction to consider this matter under the powers
conferred by that Schedule.


4.     As required by paragraph 3(7) of Schedule 6 to the Act, I have
considered the proposal afresh. I have had full regard to the guidance given
by the Secretary of State and to the School Organisation Plan for the area. I
have also had regard to the Human Rights Act 1998 and, as required by
Schedule 5 to the Act, to the relevant provisions of:
        The Sex Discrimination Act 1975;

        The Race Relations Act 1976; and

        The Disability Discrimination Act 1995.

5.       I have considered all the papers put before me including the following:

           i. the agenda and supporting papers for the SOC meeting of 15
              March 2005;

          ii. prescribed information from the Council as set out in Schedule 3
              to the Education (School Organisation Proposals) (England)
              Regulations 1999 as amended;

          iii. the Torbay School Organisation Plan 2003 and Demographic
               Update 2005;

          iv. copies of representations (objections/letters of support/comments)
              received after publication of the proposal;

          v. the Council‟s observations on the objections;

          vi. the Council‟s Early Years Childcare Plan 2004-06;

         vii. the Council‟s booklet for parents whose children will be starting
              school in 2005-06;

         viii. responses to questions I have asked and all other
               correspondence sent to me following the referral.

6.     Information received following the referral has been copied to the non-
originating principal parties who have had the opportunity to comment on it.

7.     I have also visited the two providers principally affected by the proposal
– Shiphay Primary School and St Andrew‟s Pre-School (“St Andrew‟s”). The
purpose of the visit was solely to view first hand the schools‟ accommodation
and the geography of the locality, and not to receive representations. I
arranged an informal hearing, held on 19 April 2005, to which all principal
parties (and others they chose to invite) were invited. I have considered the
representations made to me at that meeting.

The Proposal

8.     The proposal is to establish a maintained nursery at Shiphay Primary
School offering 52 part-time places to 3 and 4 year olds. The main reasons
for doing so are said to be:

        to enhance the continuity of education for those children who will attend
         the nursery and subsequently transfer to the school;
      to raise levels of attainment on entry to the school‟s Reception year;

      to provide a maintained nursery as part of the school‟s plans to offer
       “wraparound” childcare between 7.45 a.m. and 6 p.m.

9.     The nursery will form one part of a package of facilities and support
that the school intends to offer to parents including: 32 part time childcare
places for nursery age children, lunch facilities for this age group, breakfast
club and after school club for children up to age 11 and community use of the
nursery building. Although these additional elements do not form part of the
statutory proposal (the school can offer them anyway under the Extended
Schools Legislation), it is the view of the school that, taken together with the
nursery unit, they form a coherent package of wraparound provision and
should be considered as such.

10.    The nursery will operate from purpose built accommodation that the
school has already built using devolved formula capital. Indeed, since the
beginning of April 2005 the school has been running a nursery from this
building, not as a maintained provider, but on a similar basis to other
voluntary/private/independent providers of early years education.

The Objections

11.    I have considered all of the objections raised both before and following
the proposal‟s publication. In my view the key ones are these:

      There is already an excess of good quality early years education
       places in the area and therefore no requirement for more. Furthermore,
       demographic projections for Torbay do not support a case for more;

      Existing well-established providers will be adversely affected by a new
       nursery at the school and some may close – in particular, St Andrew‟s
       Pre School. This will reduce parental choice, create redundancies and,
       in the case of St Andrew‟s which is based in a church hall, reduce
       church income;

      Maintained (Council) early years providers have an unfair financial
       advantage over others: they are funded on the basis of places offered
       irrespective of the take up of those places. The new nursery will
       inevitably cost the public purse more than the provision it replaces and,
       depending on the numbers it attracts, possibly significantly more. This
       is not a good use of the Council‟s education budget, particularly given
       its‟ straitened financial circumstances. If the school is determined to
       provide early years places it should do so on the basis of a “level
       financial playing field” and not at the Council‟s expense;

      The consultation process was inadequate and biased;

      The decision makers (Council, SOC and Schools Adjudicator) are
       wrong to take account of the wraparound provision in determining the
       case for a new nursery. Wraparound provision could be provided by the
       school irrespective of whether it established a nursery unit.

Consideration of Factors

12.    Adjudicators judge each case on its merits taking into consideration
those factors most relevant in the particular circumstances. However, in doing
so they must take account of statutory guidance (“the guidance”) published by
the Secretary of State – Guidance on statutory proposals for Decision Makers
(SOCs and schools adjudicators). This sets out factors that decision makers
must consider in reaching their conclusions including the following:

      Effect on standards and contribution to school improvement;

      Need for places;

      Finance;

      Views of interested parties.

My deliberations on each of these follows but I start by considering the
consultation process leading up to the proposal‟s publication, itself the subject
of some concern.


13.     The school first approached the LEA in 1999 to discuss the possibility
of establishing a maintained nursery on its site. The LEA was supportive and
encouraged the school to develop its plans further. Between then and the
start of the formal consultation exercise in the autumn of 2004, the school
undertook a number of what could probably best be described as work –in-
progress meetings and discussions locally. Parents and other providers –
notably St Andrew‟s Pre School - were included in some of these, as were the
Early Years Childcare Development Partnership (“EYCDP”). In the light of
comments made the school amended its plans where it believed it right to do

14.    The LEA consulted formally on the proposal in October/November
2004 (the school is a community school and as such not able to publish its
own proposal to establish a maintained nursery). A consultation document,
summarising the proposal and requesting comments, was sent to a wide
variety of individuals and organisations including: parents of existing and
prospective pupils; other early years providers in the area and the EYCDP. A
public meeting was held at the school as part of the consultation process. The
Council‟s Executive met on 11 January 2005 to consider the outcome of
consultation. It decided to proceed with the nursery proposal and the statutory
notice was published on 18 January.

15.    Adverse comments about the consultation process have focussed
primarily on the extent to which the school sought to involve other providers
and to reflect their concerns in formulating the final published proposal. The
view is that the school should have done much more to inform and consult
with those most likely to be affected by the new nursery. In particular, St
Andrew‟s Pre-School, which is across the road from the school and whose
continued existence is said to be threatened by the proposal, believes that the
school should have done more to work with it and come up with a mutually
acceptable scheme. But, the fact that this didn‟t happen does not mean that
the consultation process was flawed. I have looked carefully at what took
place and the information made available prior to publication of the proposal.
It is my view that the consultation process was acceptable and that it met the
necessary requirements.

Standards of Education

16.     The school was last inspected by Ofsted in March 2004 when it was
found to be “very good with many excellent features” and to provide very good
value for money. Teaching and learning were said to be of very good quality,
and leadership and management excellent. No significant weaknesses were
identified. However, Ofsted made a number of critical comments about
standards on entry to the school. Their report noted that “Children‟s
attainment on entry to reception is lower than at the time of the last
inspection.” and “Although their attainment on entry is well below average in
all areas of learning, children make very good progress because teaching and
learning are very good.” Quite rightly the school is concerned about these low
standards on entry. It believes that with its track record of providing high
quality education – albeit for a different age group – it is in a strong position to
raise standards for young children by establishing its own nursery.

17.    Some objectors have said that the quality of education at existing
providers is also good and has been recognised by Ofsted as such. They add
that low pupil attainment on entry to reception is a common problem across
Torbay. This is as may be (and the reasons for it, if true, may be many) but as
far as Shiphay School is concerned, it believes that it can raise these low
standards by establishing its own nursery. While I am plainly not in a position
to say with certainty that pupils‟ attainment will improve, the school has an
impressive track record of providing high quality education, and from the
evidence I have seen I have good reason to be confident that it will run a
successful nursery.

18.    I asked the school for details for the past three years of the early years
settings previously attended by its reception year pupils. The information
shows that the 60 or so pupils admitted each year have transferred from more
than 20 different early years providers (although more than half come from St
Andrew‟s Pre School). It is this large number of feeder establishments (and
the issues of consistency, continuity and progression this raises for
transferring pupils) that the proposal also seeks to address. While the school
recognises that attendance at its nursery will not automatically result in a
place in its reception year, many children are likely to move from one to the
other. The school believes that this continuity of educational provision and
progression should help to raise standards. I agree. The Council makes the
same point in the prescribed information supporting its proposal. It says that
„Clearly nurseries on school sites promote the opportunity for educational
continuity in Torbay. This is also in line with the priorities of the Torbay
Education Development Plan.‟

19.      The nursery will form one part of a package of integrated provision that
the school intends to offer. It is Ofsted registered to provide a breakfast club
for 3-11 year olds, 52 part-time education places for 3 and 4 year olds (which
it and the Council would prefer to offer as a maintained nursery), lunch
facilities for young children and 32 part-time child care places for 3 and 4 year
olds “wrapped around “ the nursery sessions. The school will also work with
an existing provider to run after-school care and a holiday club on the nursery
site. This totality of provision on a single school site is currently not available
in the area. The school‟s market research shows a significant demand from
parents for this flexible package as it will enable them more readily to return to
work or pursue training: currently parents wishing to do so must move their
children from one provider to another through the day which can prove both
difficult and costly.

20.     On the issue of schools providing a range of services, the statutory
guidance says that decision makers should consider „the extent to which
proposals will integrate pre-school education with childcare services or are
consistent with an integrated approach‟ and on “extended schools” the
guidance states that, these „aim to provide a range of services, built around
the needs of children who attend the school, their families and the wider
community. Services and facilities might embrace study support, breakfast
clubs, homework clubs, other forms of childcare, family learning, adult
education, healthcare and other community facilities. While enhanced facilities
of this kind do not require statutory proposals, their inclusion would strengthen
the case for approving any statutory proposals.‟ Objectors have argued that
because the school can offer its extended facilities irrespective of the outcome
of the nursery proposal, their inclusion should not influence the decision. The
objectors are wrong on this point as my quotes from the guidance
demonstrate - the case for approving the nursery proposal is, all other things
being equal, strengthened by including it as part of a package of integrated

Need for places and Finance

21.     There is no need for additional early years places in the local area as
there is already a surplus and no forecast growth in pupil numbers. The
Council has readily acknowledged this, but believes that the advantages to
parents and children of offering the continuum of provision from age 3+ that
will be available at Shiphay School outweigh the disadvantages of creating
extra early years places.

22.    In a paper to its Executive in December 2004, the Council said that
there were 74.9 unfilled education places at 8 early education providers within
a one mile radius of Shiphay Primary School. The proposed nursery unit
would add another 52. It is this aspect of the proposal that has created the
most concern amongst objectors. They question the Council‟s justification for
incurring the extra costs of providing more maintained places (these are
funded more advantageously than others) when there is already more than
enough early years provision locally. They point out that the less popular the
nursery the greater these additional costs (as funding for a maintained nursery
is based on places available and not take up). On the other hand, the more
popular the nursery the more likely that existing, established quality providers
will close with the consequent loss of jobs and reduction in choice for parents.
St Andrew‟s Pre School is the establishment most at risk because it is close to
the school, and because most of its children transfer there anyway at age 4+.

23.     To complete the picture I should add that the school has recently built
its nursery using its own funds, and from April this year has been offering
nursery education as an Ofsted approved non-maintained provider. It has said
that it will continue to do so should the Council‟s nursery proposal (to establish
it as a maintained provider) be rejected. St Andrew‟s has already lost many of
its children to this new provision and has been forced to reduce the number of
early years sessions it now runs.

24.     The Council estimates the extra revenue costs of the new nursery to be
around £28,000 if it is full rising to some £60,000 if empty. The school projects
that the nursery will be full: it is a popular school that is regularly
oversubscribed for its reception places and expects this to be reflected in
demand for nursery places as well, particularly given the availability of the
additional services on offer. In my opinion the school is probably right in its
projections – parents often prefer to send their children to a nursery at the
primary school to which they subsequently intend to apply if that provision is
seen to be of good quality. Given the school‟s stated intention of continuing to
run a nursery should the current proposal be rejected, the question is does the
extra cost of it doing so as a maintained provider (as opposed to the level
financial playing field recommended by some objectors) represent a cost-
effective use of public funds?

25.     The first point to make is that it is a judgement on cost-effectiveness
(not a calculation of cost) that is called for here. From the school‟s point of
view it has said that it wishes to provide the best education it can for its
nursery children and it believes that the extra funding available to maintained
providers will help. This is a relevant consideration and an important one in
assessing cost-effectiveness, particularly in this case where standards are
currently low. When last inspected by Ofsted in 2004, the Council‟s support for
early years provision was praised. This reflects well on the decisions it has
made in the past. Given these two factors (the existing low standards of
attainment of 3 and 4 year olds, and the Council‟s past performance on early
years provision), I believe it reasonable to accept that this proposal is likely to
be a cost-effective use of public funds.
Impact on other providers

26.    As there are currently surplus early years places in the area it seems
highly probable that the majority of children attending the new nursery will
come from existing providers. Indeed, this is already happening as St
Andrew‟s has lost many of its children following the opening of the Shiphay
nursery in April. St Andrew‟s has said that the combined impact of the new
nursery with a move to a single point of entry into the school‟s reception year
this September, will force its closure. It has been running successfully for 25
years, and as it is the only accredited pre-school in the area, its closure will
reduce choice for parents.

27.     I have visited both St Andrew‟s Pre School and Shiphay Nursery and I
can understand why, if for no other reason, parents would be attracted by the
new facilities available in the purpose built nursery unit at Shiphay. I suspect
that St Andrew‟s is correct in its prediction that it will very quickly lose most of
its children and become financially non-viable. However, the reality of the
situation is that this is likely to happen irrespective of whether I approve this
proposal or not: Shiphay Nursery is open now and the school intends that it
should remain so. I am not persuaded that the impact of the nursery on other
providers depends to any significant extent on whether it operates as
maintained provider or not.

Views of Interested Parties

28.     Seven letters of support and 8 of objection were submitted during the
representation period. The earlier formal consultation generated 20 written
responses: 3 of support; 10 objections and 7 that were broadly neutral but
offering observations on the proposal. In addition, both St Andrew‟s and
Shiphay ran what the Council described as support gathering exercises
resulting in 35 objection slips from a mailshot to St Andrew‟s parents and 156
support slips from Shiphay parents.

29.    The EYDCP considered the proposal in February 2004 following a
presentation by the school. It voted to support the development in principle but
recommended that more research be undertaken on the needs of the area
and on the impact on other providers. It expressed concerns about the level of
consultation carried out with other providers and suggested that more be done
to ensure the support of other groups. As the EYDCP had made no
subsequent comment I wrote to them to ask for their views on the published
proposal. In reply, they said that as they had received no written evidence that
their earlier recommendations had been carried out, they had not considered
the matter again. However, the Chair noted that he had seen from
correspondence that some members of the EYDCP, acting in their individual
capacities, had expressed concern about the adequacy of the research.

30.   The SOC considered the proposal at its meeting on 15 March 2005.
Two groups voted in support (the LEA Group and the Schools Group), and
two against (the Church of England Group and the Roman Catholic Group);
the Learning and Skills Group abstained.

31.    The Church of England Group said that it was satisfied with the
arguments put forward in connection with the contribution the proposal would
make in raising standards. It was not satisfied that a need for additional
nursery places had been demonstrated and did not consider that there had
been sufficient consultation with other local providers. While it understood the
benefits of wraparound provision it did not feel that this consideration should
influence its vote on a statutory proposal about nursery provision.

32.     The Roman Catholic Group was not convinced about the arguments
aired in connection with funding and so did not consider that the proposal
represented a cost-effective use of public money. The Group was concerned
about the effect on other providers when combined with the move to a single
point of entry to Reception class at the school. It was unconvinced that a need
for additional places had been demonstrated when at the same time the LEA
had published information to suggest that birth rates had fallen and there
would be a fall in primary school rolls. It believed that the proposal would be
better considered in the wider context of changes in school population across
the whole of the Council‟s area and across Torquay in particular.


33.    In coming to my conclusions I have considered all the evidence
presented to me and all the points made by both objectors and supporters of
the proposal.

34.     Shiphay School is a very good school providing high quality education
to primary age children. However, it is concerned about the low standards of
attainment of children admitted to its reception year. Ofsted has commented
that standards on entry are well below average. The school believes, and is
supported in its view by Torbay Council, that by establishing its own nursery
and offering a continuum of provision from age 3, it can improve standards for
3 and 4 year olds. The school is also committed to meeting the currently
unmet needs of parents for flexible wraparound facilities and the nursery will
be offered as one element of a coherent package of wraparound provision.
However, these predicted benefits for parents and children will come at a cost.
There will be an impact on other providers - some may close with a
consequent reduction in parental choice - and the cost to the public purse of
funding 26 places in a maintained nursery to replace 26 currently provided
elsewhere (which is the likely effect of this proposal) will increase.

35.     I have considered this proposal very carefully indeed, particularly given
that many of its predicted benefits – which I am persuaded are likely to be real
– could be achieved without the nursery operating as a maintained nursery.
However, I place significant weight on the need to improve standards and as
the extra funding that attaches to maintained nurseries is likely to be helpful in
this regard I approve the proposal.

36.    As the proposed implementation date of 11 April 2005 has passed, I
have consulted the Council in accordance with paragraph 3(2)(c) of Schedule
6 to the Act on a possible modification to change the implementation date to 1
September 2005. The Council has replied saying that this is acceptable.


37.    Under the powers conferred on me by Schedule 6 to the School
Standards and Framework Act 1998, I hereby approve the proposal to
establish a nursery class at Shiphay Primary School subject to the
modification that the implementation date be 1 September 2005.

                                     Dated:                  27 May 2005


                                     Schools Adjudicator:    June Brown

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