Last reviewed 26 September 2016
Procedures for local authorities (LAs) and the Secretary of State to intervene in “schools causing concern” are governed by statutory guidance. This guidance must be followed as if it has the force of law unless there are exceptional circumstances. In this article, Tony Powell, Consulting Educationist explains the parts of the guidance directly affecting schools.
The Education and Adoption Act, which became law in April 2016, gives the Secretary of State new powers of intervention in schools causing concern, introduces a new category of concern to include coasting schools and introduces new provisions for action to be taken in academies. Regional Schools Commissioners (RSCs) will exercise the powers of the Secretary of State.
The DfE issued new statutory guidance which came into force in April 2016.
Schools Causing Concern: Intervening in Failing, Underperforming and Coasting Schools — Guidance for Local Authorities and RSCs.
Intervening in Failing, Underperforming and Coasting Schools: Government Consultation Response.
These technical documents deal with the relevant duties and powers of LAs and the Secretary of State when a school is eligible for intervention. For schools, the most important parts of the guidance relate to how schools are categorised as a “school causing concern and eligible for intervention” and the subsequent steps to remove them from the category.
Schools causing concern
There are three types of schools causing concern and eligible for intervention by either the LA or the Secretary of State.
Schools inspected and graded “inadequate”.
These are schools that have been judged inadequate by Ofsted, either as having serious weakness or requiring special measures. These categories relate to schools where educational performance is below an acceptable level and that is mainly defined by the floor standards.
Schools that are “coasting”.
Coasting schools are those that consistently fail to ensure pupils achieve their potential. This is measured over three years and the first coasting schools will be identified in 2016.
Schools that have failed to comply with a warning notice.
LAs and RSCs may give warning notices to maintained schools where they have concerns about unacceptable performance (including results below floor standards), a breakdown in leadership and governance, or the safety of pupils or staff. Where a maintained school does not comply with a warning notice, it will become eligible for intervention. Arrangements for academies are contained within their funding agreement.
In practice, the third type is rare so, for schools, the real danger is falling below floor standards or the new coasting definition. The main mitigating factor is internal capacity to improve.
Floor standards and coasting schools
The definitions of the floor standards and coasting schools can both be found in 2016 School and College Performance Tables: Statement of Intent, August 2016.
Intervention for schools judged inadequate
In the case of an LA maintained school, the statutory guidance states that it should be converted to sponsored academies. The RSC, acting on behalf of the Secretary of State, will take responsibility for ensuring that the maintained school becomes a sponsored academy as swiftly as possible, including identifying the most suitable sponsor and brokering the new relationship between sponsor and school. Once subject to an academy order, the governing body and the LA will be under a duty to facilitate the school’s conversion into an academy.
If the school is already an academy, the RSC can exercise the power to terminate the funding agreement with the existing trust, identify a new sponsor and move the academy to that new trust. In exceptional circumstances, this might mean closing the school. Since this is a power and not a duty, the RSC may decide not to terminate the agreement, for example, where a change of sponsor would prevent the consolidation of improvements in a school.
Intervention for coasting schools
The LA may intervene to support a maintained school. Normally, this would be proactive action to prevent the school from becoming “coasting”. However, where the school meets the definition, the statutory guidance makes it clear that it will predominantly be the RSC who will act, and its powers will take precedence.
Following publication of the revised data in the performance tables, the RSC will write to notify the school that it falls within the coasting definition and is, therefore, potentially subject to formal action. Once the RSC has made its decision, it will communicate to the school in writing, specifying the action that must be taken, the timescales and any other arrangements.
The RSC may decide that a school:
has met the coasting definition, but is in fact supporting pupils well and therefore no action is required
has a sufficient plan and sufficient capacity to improve and therefore no action is required
will need additional support and challenge in order to improve. The RSC will decide whether it will be necessary to intervene to bring that about.
Factors taken into account
RSCs will consider the school in the round, seeking to take account of its context, wider achievements and overall provision to pupils, as well as the factors which may have led it to fall within the coasting definition.
RSCs will consider both:
performance data and other quantitative information, which might indicate the causes of the school’s current underperformance
other information about the school, its context, and its plans and capacity to improve, therefore, what action would be necessary to bring about sufficient improvement.
The school’s own improvement plans will be crucial to this determination but any school must demonstrate proven capacity to improve rather than simply intent.
Where additional support or challenge is needed
Coasting maintained schools must consider the following.
The school needs brokered additional support and challenge.
This may involve, for example, work through Teaching School Alliances, partnerships with high performing local schools or from National Leaders of Education.
The governing body should enter into arrangements.
The governing body will be directed to enter into arrangements.
Additional governors or an Interim Executive Board (IEB) are needed.
If the governing body is unable or unwilling to bring about changes in governance itself, the RSC will exercise the Secretary of State’s powers to appoint additional governors or an IEB.
A sponsored academy solution is necessary.
The RSC will exercise the Secretary of State’s power to make an academy order.
The Secretary of State has the power to terminate the funding agreement for that academy and move it to a new trust. Before terminating the funding agreement on the grounds that the academy is coasting, the RSC must first give the academy proprietor a termination warning notice.
Such a termination warning notice will require the academy proprietor to take specified action to improve the academy by a specified date. Where the academy proprietor fails to comply with the termination warning notice, the funding agreement may be terminated.
The RSC may not consider it necessary to issue a termination warning notice to an academy that has met the definition of coasting, for example, because the RSC is satisfied that the academy already has a sufficient plan to bring about the necessary improvement.
The RSC’s office will monitor progress and keep under review whether additional action is needed until the school ceases to meet the definition of coasting.