Briefing on the Education and Adoption Bill

Thanks to Browne Jacobson for their help in compiling this briefing.

Summary
As indicated in the Conservative election manifesto, the government intends to strengthen the Secretary of State’s powers of intervention through the new Education and Adoption Bill. The main points related are as follows. Please see the narrative below for a full explanation.

  • ‘Coasting schools’ will be eligible for intervention by the local authority and the Secretary of State.

  • The definition of ‘coasting schools’ has yet to be decided. ASCL is involved in discussions on this.

  • The Secretary of State will have the power to issue warning notices without going through the local authority.

  • Schools will lose the ability to challenge warning notices by appealing to Ofsted.

  • For all schools graded inadequate, the Secretary of State will be required to make an academy order.

  • The Secretary of State’s power to make an academy order for schools eligible for intervention (eg coasting schools) remains discretionary.

  • Where an academy order has been issued, the governing body and local authority must take ‘all reason steps’ to facilitate the conversion process.

Introduction
After pre- and post-election promises to tackle failing and ‘coasting’ schools, within just four weeks of the election result the Government has published a new education bill designed to further reform the schools sector. The Education and Adoption Bill includes measures to strengthen the Secretary of State’s school intervention rights and its powers to force schools to become academies. Below we explain and comment on key parts of the proposed new legislation.

Coasting schools
There has been a great deal of press coverage on the topic of so-called ‘coasting schools’ and the pressure that might be placed on them to improve under the new Government. This is reflected in the new bill through the legal definition of ‘eligible for intervention’ (EFI) being widened to cover coasting schools.

Being categorised as ‘coasting’ will cause a school to become EFI. EFI status then gives both the local authority and the Secretary of State various intervention powers. For example, the imposition of an interim executive board, the requirement for the school to enter into arrangements (such as collaboration with another school) or, perhaps most significantly, the power for the Secretary to State to make an academy order in respect of that school.

The Secretary of State will be required to notify a school if she considers it to be ‘coasting’. There has already been debate within the sector about exactly what characteristics will trigger a school being classed as coasting and also how the Government will prioritise intervening in such schools. The Bill makes provision for regulations to be put in place to cover what coasting means and we understand that the Government intends to consult on this over summer. ASCL has been invited to a meeting with the DfE to help define ‘coasting’ schools and we will report back on how this develops.

Warning notices
Local authority powers to issue a school with a warning notice on certain grounds (for example, low standards) have been in place for some time. In addition, under existing law, the Secretary of State can direct a local authority to issue a warning notice. The bill proposes new legal powers to enable the Secretary of State herself to directly issue a warning notice to a governing body without having to rely on the local authority to act.

The grounds upon which a warning notice can be issued remain as before but, crucially, the bill removes the governing body’s right to challenge the warning notice by making representations to Ofsted. In addition, the 15 working day ‘compliance period’ (within which the governing body has to either comply with the warning notice or appeal to Ofsted) will be abolished. This leaves the local authority or the Secretary of State (depending on who is issuing the warning notice) free to set the timescales within which the warning notice must be complied by.

Despite the removal of a statutory appeal right to Ofsted, public law remedies will remain available to governing bodies. For example, where a governing body considers that a warning notice has been issued unfairly or with procedural flaws, it could explore challenging the warning notice through judicial review, or indeed any decision taken by the local authority or Secretary of State as a result of it. However, there is no doubt that bringing judicial review proceedings is a much more time-consuming, costly and risky option compared to the existing right to make representations to Ofsted.

As before, the effect of non-compliance with a warning notice will be that the school becomes EFI, thereby making available to the Secretary of State and local authority a range of formal intervention options, including the making of an academy order.

Academisation
The Government promised that it would actively progress the academy conversion of ‘failing’ schools and the parts of the bill which amend the Academies Act 2010 see these intentions clearly translated into legislation.

For schools graded inadequate by Ofsted (those in special measures or deemed to be requiring significant improvement), the Bill places a statutory duty on the Secretary of State to make an academy order. The change in language here is significant. Whereas the Academies Act currently states that the Secretary of State ‘may’ make an Academy Order in respect of such schools, that is changing to a ‘must’. The effect will be that the ability to challenge such a decision on the grounds that it is unreasonable or irrational will be removed, or certainly very much diminished, as the Secretary of State will have a statutory obligation to make an academy order in those cases.

For other schools which are EFI but not graded inadequate by Ofsted (such as those that have not complied with a warning notice or been designated as ‘coasting’ schools), the Secretary of State’s powers to make an academy order remains discretionary.

Consultation on academy conversion
The bill also proposes some changes around the process of the academy conversion of EFI schools, which are clearly designed to prevent campaigners or resistant local authorities from delaying a school becoming a sponsored academy.

In cases where a school is becoming an academy because the Secretary of State has made an academy order due to it being EFI, the statutory duty to consult is to be removed. There is a logic to this as the ability to genuinely consult stakeholders on a conversion which the Secretary of State has already directed must occur was always difficult to reconcile. Many academy sponsors may of course still be keen to engage with stakeholders during the conversion process but they will need to be mindful of distinguishing the provision of information from carrying out an actual consultation process.

Where such EFI schools are foundation or voluntary schools, the bill retains a statutory duty on the Secretary of State to consult the relevant body (for example, in the case of a faith school, the diocese) although only on the point of who the school’s sponsor will be, not the conversion itself.

Co-operation with the academy process
As well as diminished consultation requirements, the bill places a direct legal duty on the governing body of the school itself and its local authority to take ‘all reasonable steps’ to facilitate the school’s academy conversion. This again applies only where an academy order has been issued by the Secretary of State due to the school being EFI.

Lack of co-operation from governing bodies in this situation is currently generally dealt with by replacing the governing body with an interim executive board. However, this new ‘reasonable steps’ provision may well reduce the need for that procedural step. Local authorities opposed to the academies agenda also caused a number of headaches for the Government under the last administration. Therefore a new legal duty placed directly upon local authorities aims to prevent their obstruction of academy conversion, for instance through refusal to enter into legal documents necessary for the conversion. It also gives the Secretary of State the right to direct the local authority or governing body to take specific steps in order for the conversion to take place and timescales for doing so, thereby giving the Secretary of State the ability to very much drive forward the process.

Summary
There is no doubt that if this bill is enacted without further amendment, it will represent a significant increase in the Secretary of State’s intervention powers. With such legislation in force, it is difficult to see how a ‘failing’ school would be able to escape academisation. For ‘coasting’ schools, we await some further detail. However, even where a school does not satisfy the legal definition of coasting (whatever that may turn out to be), the ability for the Secretary of State to issue a warning notice directly offers a further, and relatively unfettered, means of intervention which could ultimately end in academy conversion.

The bill is not yet in force so none of these powers are in place at present. However, we expect a relatively speedy route to enactment and once in force, the Government’s agenda suggests there will be no delay in relying on this new legislation. We will be submitting a briefing MPs and Lords and will closely follow the bill’s passage through Parliament.