The Education and Adoption Bill 2015-16 would give the Secretary of State (SoS) greater powers to act when schools are deemed to be ‘coasting’ and to create academies. Katie Michelon of Browne Jacobson LLP explains the changes.

Sea-change for ‘coasting’ schools

The Education and Adoption Bill, published in June, includes measures to strengthen the Secretary of State’s school intervention rights and the powers to force schools to become academies. In mid-July, regulations to legally define ‘coasting schools’ were also made available.

Coasting schools

The Bill widens the legal definition of ‘eligible for intervention’ (EFI) to include schools deemed to be ‘coasting’. EFI status gives both the local authority (LA) and the Secretary of State various powers, such as the power to replace the school’s governing body with an interim executive board and/or for the SoS to make an academy order.

The government’s definition of ‘coasting school’ is set out in draft regulations with separate definitions for primary and secondary schools. The draft is subject to consultation before the final regulations come into force at the end of 2016.

Warning notices

Local authority powers to issue a school with a warning notice on certain grounds have been in place for some time but the Bill brings in some changes. It:

• removes the governing body’s right to challenge the warning notice by making representations to Ofsted
• abolishes the 15 working day ‘compliance period’ (within which the governing body has to either comply with the warning notice or appeal to Ofsted)
• enables the SoS to directly issue a warning notice without having to rely on the local authority to act

Despite the removal of a statutory appeal right to Ofsted, public law remedies will remain available to governing bodies. However, bringing judicial review proceedings would be much more time-consuming, costly and risky compared to the existing right to make representations to Ofsted. As now, the effect of non-compliance with a warning notice will be that the school becomes EFI.

Academisation

For schools graded inadequate by Ofsted, the Bill places a statutory duty on the SoS to make an academy order. The Academies Act states that the SoS ‘may’ make an academy order for such schools but, significantly, that is changing to ‘must’. The ability to challenge the decision-making of the SoS will therefore be removed, or certainly considerably diminished, as she will be obliged by law to make an academy order in those cases.

For schools that are EFI but not graded inadequate (such as those who have been designated as ‘coasting’), the SoS’s powers to make an academy order remain discretionary.

Consultation

The Bill proposes some changes around the academy conversion process for EFI schools, designed to prevent delay to a school becoming a sponsored academy.

Where a school is becoming an academy because it is EFI, the statutory duty to consult is to be removed. In some ways, this seems sensible as, where the SoS has directed that conversion must occur, how can there be a genuine consultation with stakeholders?

Where EFI schools are foundation or voluntary schools, the Bill places a statutory duty on the SoS to consult the relevant body (for example, for a faith school, the diocese) although only regarding the identity of the school’s sponsor, not on the question of conversion itself.

Co-operation with academy conversion

Where an academy order has been issued by the SoS because the school is EFI, the Bill also places a legal duty on the governing body of the school and its local authority to take ‘all reasonable steps’ to facilitate the school’s academy conversion.

Lack of co-operation from governing bodies is currently generally dealt with by replacing the governing body with an interim executive board. The new ‘reasonable steps’ provision may reduce the need for that step.

Opposition from local authorities also caused headaches for the previous administration; this new duty aims to prevent such obstruction. It is coupled with the right of the SoS to direct the authority or governing body to take specific steps for the conversion to take place and set timescales.

Summary

If this Bill is enacted without amendment, it will represent a significant increase in the SoS’s intervention powers. It also raises questions around the capacity of the regional school commissioners and academy sponsors who will, respectively, be required to intervene in and operate the schools that will be labelled as EFI under the laws proposed.

So far, the Bill has passed through the House of Commons without amendment. Its next stop is the House of Lords.

Definition of coasting schools

The government proposals are that a secondary school will be ‘coasting’ if it meets the following criteria for three consecutive years:

• In 2014 and 2015 – fewer than 60 per cent five A*-C GCSE including English and maths and below national median for three levels of progress for both English and maths
• In 2016 and beyond – below a specified level in Progress 8, which will be higher than the floor target of -0.5, probably something like -0.25.

Rough calculations indicate that up to 100 secondary schools will fall within the ‘coasting’ definition. Intervention powers will come into effect in 2016.

Katie Michelon is Associate Solicitor at Browne Jacobson LLP

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