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The Education Act 2005: an overview for school staff.

The new Act is part of a broad package of change. Yvonne Spencer explains how it will affect you over the next academic year  

THE new Education Act received royal assent on 7 April 2005. Some of the Act’s main provisions come into force from

  • August and 1 September 2005. This article highlights the issues that will affect schools during the course of the next academic year.
  • The aims of the Act are part of a broader package of changes set out in the policy document A New Relationship with Schools, published jointly by the Department for Education and Skills and the Office for Standards in Education in June 2004.
  • The Act also gives effect to part of the Government’s five-year strategy for children and learners. The main thrust in England is to reform inspections of schools and early years provision, by infusing a ‘lighter touch’ into the system of inspection.
  • The National Assembly for Wales is granted the power to implement these reforms in the future.


Part 1 of the Act reforms the inspection system. Of particular note is the re-categorisation of schools in special measures.

‘Special measures’

At present, the Ofsted inspectorate places schools in ‘special measures’ if it appears ‘likely’ that the school will fail an inspection.

  • The chief inspector may, at his discretion, inspect schools where there is ’cause for concern’ — which includes schools in special measures.
  • There will be a new category of failing school, which is graphically labelled as ‘requiring significant improvement’.
  • The frequency of Ofsted inspections will increase from every six, to every three years.

A less punitive approach to be welcomed? In some ways this less punitive approach is to be welcomed by head teachers and governors. There are many shining examples of where schools placed in ‘special measures’ under the existing system have been turned around through the admirable leadership of a new or acting head teacher.

But under the new regime, the decision to place a school in special measures is really a remedy of the last resort, and one that will inevitably severely damage the reputation of the school.

This could make it more difficult for admission authorities to oversee coordinated admissions policies in local authorities (where these apply), as many parents will not elect to send children to a failed school.

Inspection of non-maintained schools

Following an unsatisfactory inspection, where the proprietor of a non-maintained school is informed that the school needs:

  • special measures, or
  • significant improvement – the proprietor is required to provide a statement of action to the chief inspector (section 17).

– The action plan must state the steps to be taken and the time-frame for implementation. If the secretary of state requires a shorter time-scale, he may order this.
– If the education establishment is a special school (but not a community or foundation school), the proprietor must send a copy of the action plan to all the LEAs providing funding for pupils.


This covers two areas:

1. Additional or replacement secondary schools
Sections 64 and 65 of the new Act amend the School Standards and Framework Act 1998. Before, LEAs had to invite proposals for new schools where there was a need for an additional secondary school.

Now, authorities must do so in all circumstances. This includes a scenario where the need arises for a replacement secondary school.

2. Closure of rural primary schools
When contemplating the discontinuance of rural primary schools, governing bodies of foundation or voluntary schools, or the local authority, must take account of various factors when submitting their proposals. These include:

  1. the effect on the local community
  2. transport implications
  3. alternatives to closure

Why transport considerations count:

Transport implications are particularly pertinent in view of the Government’s pre-election Transport Bill, which sought radically to alter the availability of free school transport.

Had this been passed, it would inevitably have affected school children living in rural communities. This perhaps makes it all the more important that due consideration be given to these points when considering closure of rural primary schools.


Through sections 73 and 74, the Teacher Training Agency is renamed The Training and Development Agency for Schools (TDAS), and its functions extended.

TDAS: Extended functions

The new agency will be responsible for raising the standards of teaching and other activities carried out by the whole schools workforce. Its other aims are:

  • to promote careers in the school workforce
  • to improve the quality and efficiency of all routes into the school workforce
  • to secure the involvement of schools in all courses and programmes for the initial training of school teachers
    The new agency can give financial support to any person it considers fit to pursue the training objectives.

An unusual approach:

It is unusual to see such aspiring goals outlined in legislation. This is usually the domain of government departmental guidance.


At present, local authorities must set an annual ‘schools budget’ and a separate ‘LEA budget’ plus a calculated share of the budget for schools.

The new provisions change this format by ring-fencing a secretary-of-state grant, and allowing maintained schools to adjust their accounting period from the financial accounting year to the academic year. LEAs can set schools’ budgets for up to 48 months.

Effectively, schools could now have a guaranteed budget for three years, which allows the more enterprising schools to plan ahead with additional fundraising through grants or other sources.

Schools forums

Until now, schools forums have only had an advisory role. This will change: the Act requires the secretary of state to delegate as he sees appropriate.

  • This will include powers to enable forums to agree variations in a local authority’s expenditure limits, as part of the local setting of school budgets.

Success will depend on availability

This provision enhances duties on schools to ensure excluded pupils continue their education. Its success will depend on the availability of alternative education provision within the LEA.

It will be interesting to see whether the DfES amends its Guidance on Pupil Inclusion as a result.

Parents whose children fail to attend the alternative education provider can be prosecuted or issued with a fixed penalty notice.

Higher education provision

Section 105 allows maintained schools to provide some funded higher education courses. These include:

  • vocational or professional courses at level 4
  • modules of first degree courses
  • components of higher national diplomas

Children in care

Section 106 of the Act gives elevated status to a provision that was previously contained in DfES guidance — May 2000 Education of Children and Young People in Public Care. It is supported by the Department of Health Circular LAC (2000) 13.

The Act also strengthens paragraph 7.22 of the School Admissions Code of Practice.

Priority admissions

Children in the care system are to be given priority under new admissions arrangements for maintained schools, and will be offered preferred admission status.

This provision is in line with goals set for looked-after children in the Every Child Matters inspection framework.

An extra step for children in care

Unfortunately the Act does not go quite far enough in tackling the issue of inequality of opportunity for children in care.

The Education Act 1996 still places the parent at the centre of the special educational needs request and appeal system; and of the exclusion appeals process.

For children estranged from parents through neglect or abuse, there very often isn’t a parent on the scene who can work through the system on their behalf.

Whilst the special educational needs and disability tribunal has in the past allowed appeals by foster parents, the system is still a lottery for these children.

It is too much to expect a child’s social worker to run an appeal on the child’s behalf. Not only are they stretched, but it is also difficult for them to appeal against their own authority.

Schools with concerns about children in care with special educational needs might be advised to consult the social worker to find out if the child could have access to an independent advocate.

Disposal of land owned by publicly funded foundation schools.

The Act (section 107) safeguards the land, and the use of the proceeds raised from the sale of land, owned by foundation schools.

Foundation schools in England and Wales must seek the secretary of state’s permission for sale, and should be aware that conditions may be attached to the consent.

Storage and sharing of information

Through section 108, information can be shared between the Department for Education and Skills; Revenue and Customs; and the Department of Work and Pensions, to verify information in applications for education maintenance allowances.

The drive behind this is to prevent fraudulent claims based on inaccurate statements of means.

  • Data on individual teachers as part of a school’s workforce can be collected as part of statistical research and for ‘other purposes’.
  • New regulations will come into force requiring or enabling the secretary of state, or the National Assembly for Wales, to seek such information.

Yvonne Spencer is a solicitor advocate at Fisher Jones Greenwood Solicitors in Colchester.

Under the new Act, only those schools that fail to provide an acceptable standard of education, and fail to demonstrate the capacity to improve, will be deemed to be in ‘special measures’.

Inspection of early years provision

Section 53 and Schedule 7 of the Education Act 2005 bring the inspection of early years provision (through day care and child minders) into line with schools inspections. The Act does this by amending the relevant provisions of the Children Act 1989 section 79.

Where the chief inspector deems the early years provision to be ‘unacceptable’, the chief inspector must report the matter to the secretary of state — who may advise the local authority to remove the provider from its directory, and withdraw early years funding grants.


In the event that the local authority acts on this advice, the early years provider has a right of appeal to the local authority — and subsequently to the local government ombudsman if there has been maladministration.

Quality and standards

The chief inspector must inform the secretary of state about the quality and standards of child-minding and day care (section 53). This information must include:

  • how far the provision meets the needs of the children cared for
  • the quality of leadership and management
  • the contribution to the well-being of children

The Act stipulates that when carrying out its responsibilities, the TDAS must ensure that the workforce is sufficiently trained and suitable to:

  • promote the spiritual, moral, behavioural, social, cultural, mental and physical development of children and young people
  • contribute to their well-being
  • prepare them for life opportunities, responsibilities and experiences of later life

Changes to governors’ role

  • Governors now have an obligation to publish a school profile. The secretary of state will set the contents and the frequency of publication.
  • A second change is that governors of maintained schools will no longer be required to produce an annual governors’ report, or to hold an annual parents’ meeting.
  • Governors are given the power to direct excluded pupils to attend alternative educational provision if the pupil is not attending school, but is still on roll.


The Education Act 2005 can be downloaded from www.opsi.gov.uk

The policy document ‘A New Relationship with Schools’ is available from the DfES website www.dfes.gov.uk

For early years’ provision, see SureStart Guidance: ‘A Code of Practice on the Provision of Free Nursery Education Places for Three and Four Year Olds 2004— 2005’ at www.surestart.gov.uk

This article first appeared in Education Law Update – Sep 2005

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