Graham Clayton M.A. (Cantab), Legal Consultant

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Protecting qualified teacher status


May 2010


During the 2010 election campaign, Gordon Brown himself was keen to proclaim the introduction of Higher Level Teaching Assistants a Labour achievement. He was right  HLTAs are a very significant Labour achievement and threatening them with Coalition cuts would be a very backward step.


However the good intentions of education ministers were, all too often, not realised in practice, particularly if there was a few pounds to be saved on the school budget by distorting the rules. UNISON’s recent survey showing up the widespread practice of using HLTAs as substitutes for qualified teachers has proved the point. 


The problem lies with the wording of the regulations brought in to licence the employment of Higher Level Teaching Assistants following the 2003 education workforce agreements. For England, they are called the Education (Specified Work and Registration) (England) Regulations 2003. There are very similar regulations in effect in Wales.


The wording of these regulations was one of the main reasons why the NUT refused to sign up to the 2003 agreements, and was, as a result,  denied membership of the arrangement between teacher unions and government known, fondly to some, though rather inaccurately, as the ‘social partnership’. With the workforce agreements as a whole having failed to achieve their main purpose of controlling teacher workload,  the NUT’s view looks wholly vindicated.


The regulations have a kind of definition of the work of qualified teachers. It’s called ‘specified work’. It’s to plan, prepare and deliver lessons and to assess and report on the development, progress and attainment of pupils.


That’s it, teachers. That’s your specialist job description. Not exactly status enhancing is it ? Everything else you spent years training to do, everything else you’ve built up your expertise doing isn’t acknowledged as work to be restricted to qualified teachers.


And even that’s not quite the whole story. Towards the end of these regulations is the specific licence for the Higher Level Teaching Assistants, which says that, in some circumstances, they can do the ‘specified work’ as well.  What in total the regulations actually say is that anyone at all can plan, prepare and deliver lessons and assess pupils. Only the conditions under which they do so matter.


To be fair, the conditions were supposed to protect qualified teachers, but it seems that the lack of legal precision was the result of drafting in a committee rather than by the normal process   It’s the uncertainty in these conditions that has caused large scale abuse of the good intention of the rules.


Someone who is not a qualified teacher is allowed to do ‘specified work’ in a school only if the head teacher considers him or her suitable, and if the person concerned is doing the work to “assist or support” the work of a qualified teacher under the “direction and supervision” of a qualified teacher.


It’s pretty clear now that the law is being widely distorted and broken. When the NUT complained two or three years ago, it was told that the government would monitor the situation through its social partnership groups – omitting of course the NUT – but it’s the UNISON survey which has now revealed the scale of what is happening.


It’s the inadequacy of the rules which makes the situation difficult to control. We have no precise definition of what constitutes ‘assisting and supporting’ nor of ‘direction and supervision’.  A relatively simple shuffling around of the words in the rule would do a lot to tackle that problem. Instead of being licensed to do specified work, HLTAs could have been licensed to assist and support qualified teachers in doing specified work. It’s a subtle difference which would have made the rule much clearer, and qualified teacher professional status would have been left intact. 


However, that’s nowhere near enough. ‘Specified work’, as a definition of teacher professionalism, is hopelessly inadequate. The Conservative party’s election manifesto spoke of enhancing teacher status and that of course is what this is really all about. Michael Gove has good reason now for a much more radical approach to the rules and regulations.


That would be to make ‘teacher’ a protected title. ‘Protected titles’ are descriptions of members of a profession like solicitors, barristers, doctors and other health professionals which cannot be used by anyone who is not appropriately qualified and registered. Making ‘teacher’ a protected title would be a real step forward in enhancing the status of teaching and certainly a whole lot better than a definition confined to preparing and delivering lessons and assessing the outcomes, which anyone is allowed to do, provided only that the conditions are right.