Education and Adoption Bill 2015 – implications for school improvement

What we will cover

Eligible for intervention

Warning notices

Other new school intervention measures

Academy Orders

Academy process

Background

• academies and school intervention: May 2010 – March 2015

• Conservative party manifesto• Education and Adoption Bill – “a Bill to make provision

about schools in England that are causing concern, including provision about their conversion into Academies and about intervention powers”

• 3 June 2015 - draft Bill published and first reading in House of Commons

• 22 June 2015 – second reading of the Bill.

Summary of changes

• extended legal definition of ‘eligible for intervention’

• changes to process around warning notices

• increased intervention powers for the Secretary of State

• mandatory duty to make an Academy Order in some cases

• academy conversion process – consultation and co-operation.

Remember – not yet in force!

Eligible for intervention

EFI – current law

When is a school eligible for intervention (EFI)

• school issued with a performance standards and safety warning notice

• school issued with a teachers’ pay and conditions warning notice

• school requiring significant improvement• school requiring special measures.

EFI – proposed law

New section 60B in Education and Inspections Act 2006

• an additional way of becoming EFI• a maintained school is EFI if the governing body of the

school have been notified that the SofS considers the school to be coasting and have not subsequently been notified that the SofS no longer considers the school to be coasting

• what is a coasting school? • “how about this: if Ofsted finds the head has a

hammock, a box of Cuban cigars and Tom Cruise mixing cocktails in the office, turn the school into an academy.” (Vic Goddard, Principal, Passmores Academy, Essex).

Warning notices

Warning notice grounds (1)

• warning notice – section 60 of Education and Inspections Act

• a local authority may give a warning notice to the governing body of a maintained school where the authority are satisfied:

a) that the standards of performance of pupils at the school are unacceptably low, and are likely to remain so unless the authority exercise their powers under this Part, or

Warning notice grounds (2)

b) that there has been a serious breakdown in the way the school is managed or governed which is prejudicing, or likely to prejudice, such standards of performance, or

c) that the safety of pupils or staff of the school is threatened (whether by a breakdown of discipline or otherwise).

Unacceptably low standards

• For the purposes of the ‘standards of performance’ ground, standards of pupils at a school are low if they are low by reference to any one or more of the following:

a) the standards that the pupils might in all the circumstances reasonably be expected to attain;

b) where relevant, the standards previously attained by them; or

c) the standards attained by pupils at comparable schools.

What can you do?

Three options:

• nothing

• comply (15 working days)

• appeal to Ofsted (15 working days).

SoS power to direct issue

• the SoS may direct a LA to issue a warning notice

• may only do so if there are reasonable grounds to give the warning notice

• process for SoS to give intention to direct, LA to respond, SoS can overrule a refusal and require issue.

Proposed changes

• Secretary of State power to issue a warning notice directly

• compliance period determined by the LA or SofS (whoever issuing the warning notice)

• no right of appeal to Ofsted – under new law, must comply with the warning notice or the school will become EFI

• Judicial review?

Intervention powers where a school is EFI

Eligible for intervention – LA powers

The intervention powers below are currently available to a LA where a school is EFI:

• Section 63 – require GB to enter into arrangements

• Section 64 – power to appoint additional governors

• Section 65 – power to put in place an interim executive board (‘IEB’)

• Section 66 – power to suspend delegated budget.

Eligible for intervention – current SoS powers

The intervention powers below are currently available to the SofS where a school is EFI:

• Section 67 - power to appoint additional governors

• Section 68 - power to direct closure

• Section 69 - power to put in place IEB.

Additional SofS powers under the Bill

• Section 66A - power to require GB to enter into arrangements

• Schedule 6, para 5A – give directions to the LA regarding:

- who to appoint as IEB members

- how many people should be IEB members

- terms of appointment for the IEB members

- termination of any appointment

• Section 70C – power to take over responsibility for IEB arrangements.

Academy orders

Current position

Section 4(1) of Academies Act 2010The Secretary of State may make an Academy Order in respect of a maintained school in England if:

(a) the GB of the school makes an application for an academy order; or

(b) the school is eligible for intervention.

Proposed position

New section 4(A1) of Academies Act 2010

• the Secretary of State must make an Academy order in respect of a maintained school in England that is eligible for intervention by virtue of sections 61 or 62 EIA 2006 (schools requiring significant improvement or schools requiring special measures)

• amendment to section 4(1)(b) accordingly (“other than by virtue of section 61 or 62 of EIA 2006”).

Academy conversion process

Consultation – current position

• statutory duty to consult on the question of whether the conversion should take place

• consultation must be completed before conversion (though it can take place either before or after the academy order has been issued)

• consultation must be undertaken by the school’s GB unless the school is EFI, in which case it can be run by the sponsor.

Consultation – proposed position under the Bill• no statutory duty on any body to consult if the academy

order has been issued under sections 4(1)(b) or section 4(A1)

• a more logical position?• will/should sponsors still ‘consult’?• where the school is:

- a foundation or voluntary school with a foundation and- has been issued with an AO under sections 4(1)(b) or

section 4(A1)the SofS must consult with the trustees/persons who appoint foundation governors/religious body but only about the identity of the sponsor.

Co-operation with the conversion process

Proposed new duties and powers under the Bill• Section 5B(1) – duty on the school’s GB and the LA to

“take all reasonable steps to facilitate the conversion” where an AO issued because the school is EFI

• Section 5B(2) – where the SofS informs the GB of a proposed sponsor, the above duty includes obligation to “take all reasonable steps to facilitate the making of academy arrangements with that person”

Impact?

• duties do not assist non-EFI convertors who are facing obstruction by their LA

• duties do not prevent parent and/or staff campaigns

• duties do not prevent resistance ahead of AO being made

• what if a school comes out of a category during the conversion process?

N.B. Bill also proposes new power to revoke an AO made in relation to an EFI school (section 5D of Academies Act 2010).

Options – a reminder!

Schools in a category

Under current law

• already eligible for intervention so possible intervention via:‐ academy order (SofS)‐ additional governors appointed (SofS or LA)‐ IEB (SofS or LA)‐ suspension of delegated budget (LA)‐ entering into arrangements (LA).

Schools in a category

Under proposed new law

• already eligible for intervention• SofS has a statutory duty to issue an academy order• also possible intervention via:

‐ additional governors appointed (SofS or LA)‐ replacement of GB with an IEB (SofS or LA)‐ suspension of delegated budget (LA)‐ entering into arrangements (LA or SofS).

Schools not in a category

Under current law

• need a warning notice – either LA can issue independently, or SofS may direct issue

• if unsuccessful challenge and/or failure to comply with WN or then become EFI and the school is in the same position as school in a category.

Schools not in a category

Under proposed new law

• is the school a coasting school? SofS may give notice that the school is a coasting school and it will then become EFI

• otherwise, need a warning notice – either issued by the LA or directly issued by the SofS

• must comply with the WN (no right of appeal) otherwise become EFI and then school is in same position as school in a category (except for mandatory AO).

Conclusion

• currently the SofS and LA have extensive powers where schools are EFI

• those powers (especially the SofS’s) are set to become even wider

• however, powers must be exercised reasonably and in accordance with public law principles – could still be challenges based on public law

• amended consultation and co-operation duties designed to make sponsored academy conversion a smoother process

• the proposed powers and duties are not in force and only draft – they could change - watch this space!

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