What could Nicky Morgan’s new legal powers mean for schools?

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Up to 1,000 failing schools could be forced to become academies under the new Education Bill announced last week. And it seems no one is safe, as the DfE’s new powers to steamroll stakeholders and turn schools into academies extend to any school they class as ‘coasting’. Roger Inman examines the implications for school leaders.

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The new Education Bill published on 3 June contains a lot of stick and not much carrot for school leaders. If the Academies Act in 2010 was mainly about the permission to convert to academy status, this new Bill is all about giving the DfE the powers to force schools into being academies and removing the barriers that have typically been thrown up by opponents to compulsory academisation. To achieve this, we will see for the first time regular intervention into schools by the DfE going over the heads of Local Authorities. This Bill may be a major milestone in the demise of the role of Local Authorities in education as we see more power concentrated in the hands of central government.

The Bill still has to go through Parliament before it becomes actual law. However, given that it is enacting manifesto commitments, it can be taken as a clear indication of the probable new landscape for schools. The Bill also only applies to schools maintained by a Local Authority. However, the new powers regarding ‘coasting’ schools will probably also be applied to existing academies in due course.

The penalty for ‘coasting’

The first stand out item in the Bill is the obligation on the Secretary of State to make an academy order for any maintained school with a Grade 4 Ofsted report of ‘inadequate’. Although theoretically such an order could later be revoked, in practice this obligation removes any room for challenge or doubt regarding the routine academisation of such schools.

The Bill also introduces a new category of schools, namely ‘coasting’ schools, which will now be ‘eligible for intervention’. We have heard government and Ofsted tell us since at least 1999 that they will be cracking down on coasting schools, but this rhetoric has now become the keystone of new government policy. Regulations will now define what coasting means. Nicky Morgan has stated that the government will be ‘introducing a new measure in secondary schools looking at the progress that students make over the course of their time there’ as the basis for identifying a coasting school, and she has also confirmed that the Progress 8 measure will specifically play a part in determining which schools are coasting. Now, using their determined definition of coasting, the Secretary of State will simply be able to notify a school that it is coasting and therefore ‘eligible for intervention’.

Interestingly, the government has not decided to make schools that ‘require improvement’ automatically ‘eligible for intervention’. We can, however, expect those schools (currently over 3000 in number) to be first in line for potential compulsory academisation through the coasting process. Also, no school is safe from intervention because a school rated ‘good’ by Ofsted could still be defined as coasting. There is no date set on when the regulations defining coasting will be published, but that definition will be a critical new concern for school leaders.

What sort of intervention can we expect?

The Secretary of State will be able to force coasting schools to:

  1. enter into arrangements with external parties chosen by the Secretary of State for a range of advisory services, collaborative arrangements or even compulsory federation with other schools; or
  2. become an academy, although that is not compulsory (unlike schools with Grade 4 Ofsted reports).

The Secretary of State can do all of this to coasting schools simply by notifying a school that she considers it to be coasting and that it is consequently ‘eligible for intervention’. This will inevitably result in challenge about whether she has exercised her powers rationally and lawfully.

The Secretary of State can also now issue a ‘warning notice’ directly to a school, rather than rely on an LA to do so. If the Secretary of State decides to do this, which, in practice, will presumably be done through her Regional School Commissioners (RSCs), the LA cannot use any warning notice in relation to that school without permission. The removal of the right to appeal and compulsory minimum response time will also mean that intervention could take place very quickly after the issue of a warning notice, and schools are advised to take independent legal advice the minute they detect any threat of a warning notice being issued.

The Secretary of State will also have powers to control the appointment and functions of Interim Executive Boards put in to replace Governing Bodies. Consequently, the DfE will now be able to suspend an LA’s intervention powers over its own maintained schools.

Removing barriers to academisation

The Bill also seeks to address what the current government regards as unnecessary impediments to the process of academy conversion. Controversially, the duty to carry out a public consultation on becoming an academy will not apply to any school that is ‘eligible for intervention’.

The Secretary of State has also acted on long standing DfE concerns regarding the obstruction of the process of academy conversion by some LAs and governing bodies. There will now be a duty on LAs and governing bodies to proactively take all reasonable steps to facilitate the academy conversions they are involved in. The Secretary of State will have the power to give directions to enforce this facilitation by LAs and governing bodies.

These steps to speed academy conversion will, however, only apply to schools that are ‘eligible for intervention’ (i.e. ‘coasting’ or ‘inadequate’). They will not help other schools that are choosing to convert into being an academy; indeed, the new Bill does nothing to assist such schools.

Implications for schools and academies

So, for the first time, the Secretary of State will be intervening directly into the governance of maintained schools over the heads of LAs. Maintained schools should expect to hear from the Regional Schools Commissioner rather than just the LA if they are in difficulty and those schools need to take anything their RSC says particularly seriously.

The definition of ‘coasting’ will be a critical new standard for schools, making the difference between being in charge of their own destiny and being ‘eligible for intervention’ and, potentially, compulsory conversion into an academy. Existing academies will also have to pay heed to this change, as the Secretary of State may, in the future, seek to use her powers to move academies into multi academy trusts (MATs) of her choosing if she decides they are ‘coasting’ and should not continue in their current setting.

Will there be enough MATs to receive all these compulsory academy conversions? Many doubt it, especially given that Nicky Morgan has confirmed that the governance of schools will be not for profit during this parliament. This makes her project more politically palatable for most, but much more difficult to put into practice.

The Government has put out a figure of about 2000 schools that will definitely be academised during this parliament but, if the measures to address coasting are applied with any vigour, the overall number will be much higher than that. The DfE has found from bitter experience that even the largest MATs cannot manage more than about 50 schools, especially if a high proportion of those schools are failed institutions in recovery. Although Diocesan MATs are now emerging belatedly, their development is embryonic and their actual capacity uncertain.

It is currently unclear how enough durable MAT structures are going to be created to receive the large number of additional academies contemplated by the new government. In practice, the actual introduction of measures to tackle coasting schools may have to be slower than the government would ideally want in order to allow its RSCs enough time to build the MAT capacity needed. The pressure on successful school leaders to take on other schools will inevitably intensify.

Roger Inman is Partner and Head of the Education Group at specialist education solicitors Stone King LLP. For further information or discussion, contact Roger at ri@stoneking.co.uk or 0794618123.

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