Background

The Government’s latest proposal in reforming the English schooling system was laid before Parliament last week in the form of the Education and Adoption Bill 2015-16 (“the Bill”). The Bill sets out provisions to convert English schools that are “causing concern” into academies, and to provide greater power for the Secretary of State for Education to intervene in such schools. The purpose of the Bill is to remove existing bureaucratic barriers which prevent schools from being improved.

Ofsted’s Annual Report 2013/2014 indicates that of the 16,866 primary, secondary and special schools that are maintained by local authorities, 420 of them were rated as “inadequate” at their most recent inspection, while a further 2,967 have been identified as “requires improvement”. It is expected that the Bill will lead to as many as 1,000 maintained schools judged to be “inadequate” or “requires improvement”, converting into academies.

Coasting schools

The Bill creates a new category of maintained schools eligible for intervention - “coasting schools”. The definition of coasting schools has not been set out in the Bill, apart from a provision that such schools will have received notification from the Secretary of State that it is under a “coasting” status. The Bill gives the Secretary of State a power to define “coasting schools” in regulations. Despite this term being frequently used by politicians, the lack of an official definition of “coasting” has resulted in a lot of debate and speculation. In 2012, Ofsted’s Chief Inspector Sir Michael Wilshaw, in a Government summit on “coasting schools”, hinted that schools which have remained in the category of “requires improvement” for more than three years would require special measures, whilst Nicky Morgan, the Secretary of State for Education, has recently commented in the media that in deciding whether an intervention is needed, a school’s progress measures and improvement plans would also be considered, in addition to the school’s Ofsted grade. Until a definition of the term is drawn up, it is difficult to assess the full impact of the Bill on maintained schools.

Interventions

The existing provisions that enable only local authorities to provide a warning notice to a maintained school, and that give schools a 15-day compliance period in receipt of such a notice, will be altered. The Bill gives the Secretary of State a power to issue a warning notice, which will prevail over any warning notices that might have been issued to the same school by the relevant local authority. In addition, the Secretary of State has the power to specify a period for compliance instead of the guaranteed 15 days. The governing body’s entitlement to make representations to the relevant local authority is also to be removed under the Bill.

Meanwhile, the Bill gives the Secretary of State new powers to require a school which is eligible for intervention (but not if the cause of such intervention is the school’s failure to comply with teachers’ pay conditions) to take specific actions to improve the school’s performance (for example, entering into an arrangement with the governing body of another school), and to direct the appointment of interim executive members in the event that an interim executive board has already been appointed by the local authority. The Bill also contains provisions regarding the interactions between the intervention powers of the Secretary of State and local authorities.

Academy conversions

Whilst currently, the Secretary of State is permitted to make an Academy order relating to the conversion of a maintained school which requires significant improvement or special measures, the Bill places an obligation on the Secretary of State to proactively issue an Academy order in relation to such schools. However, the Secretary of State retains a discretion as to whether to issue an Academy order in relation to a maintained school which fails to comply with a warning notice, or has been identified as “coasting”. At the same time, the Bill places a new duty on the governing body of the school and the relevant local authority to facilitate the conversion once an Academy order is issued, including following any specific directions that may be given by the Secretary of State.

Conclusion

Considering the potential impact it may have on thousands of maintained schools, the Bill has already generated fierce debate. While the Government has emphasised that the Bill will “close loopholes and speed up the turnaround of failing schools”, others have questioned whether academies are the solution for falling standards. It remains to be seen whether the content of the Bill will be “watered-down” in any way following its passage through Parliament, yet it is certainly clear that the Bill reflects the Government’s intention to take a more proactive role in improving the standards of maintained schools in England.