Tackling failing or ‘coasting’ schools

Rebecca Hazeldine, Geldards

The government’s mission to drive up school standards by speeding up the process of improving failing schools and tackling underperformance in ‘coasting’ schools is well underway.

The Education and Adoption Act 2016 recently received Royal Assent. The majority of the new powers laid out in the act will come into effect from 18 April 2016. At the same time, the Department for Education (DfE) published their responses to the consultation, Intervening in failing, underperforming and coasting schools, which sought views on the proposals for tackling underperformance, and the definition of a ‘coasting school’. The statutory guidance, Schools Causing Concern, was also consulted on, and a final version which takes into account the changes under the Education and Adoption Act 2016, has now been published.

Under the changes, local authorities and governors are actively required to take steps to convert schools to academies, while the Secretary of State’s power to intervene directly has been greatly extended. The new powers of the Secretary of State will now be exercised by Regional School Commissioners who are expected to follow the DfE’s guidance in exercising those powers. The powers of local authorities to intervene remain largely unchanged although there are implications in the way in which these are used alongside the new powers of the Secretary of State.

The guidance sets out the roles and responsibilities of Regional School Commissioners and local authorities, and how they will work with others to ensure underperformance is challenged and schools are supported to improve. Given the increased powers of the Secretary of State it will be interesting to see how commissioners and local authorities work together in exercising their powers. There will be certain requirements for local authorities and school commissioners to notify each other when they intend to exercise their powers. In some cases, the authority’s powers will be restricted where the commissioners have already exercised their powers.

The Education and Inspection Act 2006 (as amended by the Education and Adoption Act 2016), will continue to be the main act dealing with intervention in maintained schools. This act only applies to local authority-maintained schools.

Academies and free schools are not subject to this regime as they have a separate legal framework. Regional School Commissioners will scrutinise academies’ performance and will require academies to take appropriate action or face termination of their funding agreement. New provisions have been included in the Education and Adoption Act 2016 to ensure that Regional School Commissioners have robust powers to hold all academies to account in a similar way to other schools. The Education and Adoption Act 2016 makes amendments to the Academies Act 2010 and includes a provision to ensure consistency on funding agreements for both schools and academies that are failing or coasting.

To become eligible for intervention, a school must fall within one of the following categories. The first four categories are well established under the Education and Inspections Act 2006 but there are now some procedural amendments.

  • Performance standards and safety warning notices (section 60) – A local authority and Secretary of State under the new provisions may issue a warning notice. As was the case previously, such a warning notice can be given where standards of performance are unacceptably low; there has been serious breakdown in management or where the safety of pupils or staff is threatened. Considerations to be taken into account are set out in the guidance. If a Regional School Commissioner has given a warning notice, the local authority may no longer give one. Failure to comply with the warning notice within the specified time period will mean that the school becomes eligible. The intervention powers must be used within a period of two months from the end of the compliance period.
  • Teachers’ pay and conditions warning notices (section 60A) – Only a local authority can issue such a warning notice. The effect of a failure to comply is the same as for performance notices.
  • Schools judged by Ofsted as requiring significant improvement (section 61)
  • Schools judged by Ofsted as requiring special measures (section 62)
  • New category of coasting schools (section 60B) – A coasting school is one where performance data shows that for the past three years they have failed to ensure pupils have reached their potential. The precise definition of a coasting school will be set out in more detail in regulations by the Secretary of State.

A school will be notified by a Regional School Commissioner if they are coasting, following publication of the final performance results for that year. Once they have received such a notification, they become eligible. Prior to notification, commissioners may contact schools to start informal discussions, providing an opportunity for all parties to work together to start developing plans for improvement.

The Regional School Commissioner will have discretion to decide whether the school has a sufficient plan and sufficient capacity to improve on its own, whether it needs additional support and to challenge whether it will be necessary to intervene using any of the powers explained below.

Any views or evidence from the local authority will also be taken into account or the school commissioner may wish to work with the local authority if they are already providing support. The guidance sets out the process and various factors which can be taken into account.

Once a school becomes eligible, there are a number of powers open to local authorities and the Secretary of State (to be exercised by the Regional School Commissioners) to support the school. Many powers are already available to local authorities. Note, only some of these powers are available where the school is eligible under section 60A. The Education and Adoption Act 2016 greatly increases the powers available to the Secretary of State.

  • Entering into arrangements (section 63 and section 66A) – Notice can be given to a school requiring it to take a specified action including obtaining advisory support, collaborating with another school or educational body or joining a federation. This power has been extended to the Secretary of State under the new powers.
  • Appointing additional governors or an Interim Executive Board (sections 64, 65, 67, 69 and 70C) – Both the local authority and the Secretary of State will continue to have power to appoint additional governors or an Interim Executive Board which is subject to the local authority obtaining Secretary of State consent. The Secretary of State will now be able to direct the local authority in relation to the size and composition of the board. The Secretary of State also has the power to take over responsibility of an Interim Executive Board which a local authority has put in place. The guidance provides details as to the membership and roles of a board.
  • Suspending their right to a delegated budget (section 66) – Local authorities will continue to have power to suspend a school’s delegated budget.
  • Directing a school closure (section 68) – The Secretary of State can direct a local authority to cease to maintain a school, usually in cases where there is no prospect of the school making sufficient improvements.
  • Making an academy order (Academies Act 2010, sections 4 and 5) – Where a school has been judged inadequate (such as requiring significant improvement or special measures), action is needed urgently and there is now a new duty placed on the Secretary of State to make an academy order. In other cases, the Secretary of State will have discretion as to whether to make an academy order. If this happens, the new provisions place a duty on local authorities and the governing body to work towards the conversion and take all reasonable steps. The Regional School Commissioner will be able to direct them to take specified steps if required. There is now no requirement for the school to carry out any consultation, nor is the commissioner required to consult except in the case of voluntary or foundation schools. However, an academy sponsor is now required to communicate to parents any information about their plans for the school.

Before exercising these powers, there are some requirements for consultation and notification with various parties, including the governing body, foundation trust or religious body.

The majority of the new, strengthened provisions and the revised statutory guidance will take effect from 18 April 2016; the start of the summer term. Schools identified as coasting will only be notified after the publication of the performance tables reflecting final 2016 results; no school can be classed as coasting before then.