This e-bulletin discusses LAs having the power to intervene in situations where schools are causing concern, often following an Ofsted inspection

Schools causing concern have been in the news recently as a result of the government’s controversial National Challenge Initiative. The Education and Inspections Act 2006 (the 2006 Act) gave LAs a key role in promoting high standards of education and provides a legal framework for LAs and the secretary of state to intervene in schools causing concern. Further power and responsibilities of intervention are to be contained in the Education and Skills Bill.

When do LAs have the power to intervene?

The 2006 Act concentrates mainly on the powers available to LAs when a school fails an Ofsted inspection and is placed in special measures or found to require significant improvement. Most schools in this situation are able to quickly resolve their difficulties by working effectively with the LA. Indeed, most schools deemed to require significant improvement will be found performing satisfactorily only 12 months later. Intervention is, therefore, rare.

What if a school has not failed an Oftsed inspection but the LA is not happy with its progress?

There are further provisions in the 2006 Act relating to the issuing of formal warning notices by LAs to schools. These are reserved for schools which might not be performing sufficiently poorly to be considered inadequate by Ofsted, but are nevertheless poorly performing in relation to their pupil intake, past results or in comparison to similar schools. Intervention in such cases is rare, with concerns usually addressed by constructive dialogue and consideration of the support necessary to alleviate them. This would ordinarily occur between the school improvement partner or, the National Challenge Adviser of the LA with the headteacher and governors of the school concerned.

What are the circumstances under which a formal warning notice can be issued?

The issuing of a formal warning notice can only be considered in limited circumstances. Firstly, the relationship between the LA and school must have completely broken down such that all available channels to engage with the school have been exhausted. Secondly, there must be a likelihood that the performance of the school will remain poor unless intervention occurs; or there has been a breakdown in the management of the school; or the safety of the pupils or staff is threatened. After the issue of a notice, the school has fifteen days in which to make representations to Her Majesty’s Chief Inspector in appeal of the decision.

What powers of intervention does an LA have?

Where a school has either failed an Ofsted inspection or been given a formal warning notice and intervention is required, an LA has a number of options under the 2006 Act:

  • appoint new governors; or
  • create interim executive boards; or
  • require a badly performing school to link up with a good-performing one; or
  • remove the delegation of the school’s budget; or
  • close, merge or otherwise re-organise the school; or
  • request an Ofsted inspection of the school.

What is an interim executive board (IEB)?

Under the Education Act 2002, an LA can give notice to a school’s governing body and the secretary of state of its intention to appoint an IEB for an interim period, either defined at the outset or determined at a later date. Once appointed, the IEB acts in place of the school’s governing body for an interim period in an attempt to assess and redeem the failing school. The IEB itself has a number of broad powers. These include determining its own procedure and making any arrangements it thinks fit in order to discharge its duty. Moreover, it has the ability to make, at any time during the interim period, a recommendation to the LA and secretary of state that the school be closed. Some research has shown a generally low success rate for the 80 or so IEBs that have so far been introduced.

Why new powers are needed?

The government claims that there is evidence that the existing legislation has not been used effectively. In particular, formal warning notices are not being issued against schools when they should be, leaving LAs (and the secretary of state) unable to intervene. Further to this evidence, Ed Balls wrote to all LAs on 3 July 2008, detailing plans to include provisions to enhance the existing powers to intervene in schools within the forthcoming Education and Skills Bill.

What new powers are proposed?

The proposed new legislation would require LAs to consider formal warning notices where the secretary of state judges there is evidence of poor school performance and to provide reasons if they decide not to issue such a notice. The power of the secretary of state to require LAs to bring in additional advisory services would also be extended. This power will arise even though a school may not have failed Ofsted Inspections. The new legislation will also attempt to clarify that the issue of notices should be considered more often.

This e-bulletin issue was first published in February 2009

About the author: Mark Blois