The local authority’s role in improving schools is a crucial one. But new powers that have been proposed are controversial, says Mark Blois

The Education and Inspections Act 2006 gives local authorities a key role in promoting high standards of education. It also provides the legal framework for local authorities and the Secretary of State to intervene in schools causing concern.

Such intervention, or at least the threat of it, plays a crucial role in leading to the improvement of schools by motivating school staff and allowing schools to take early action when necessary.

But despite the existing powers to intervene, the Government has proposed further measures.

This article analyses:

  • the current powers of intervention
  • the arguments for new powers
  • the proposed new legislation and the controversy surrounding it

The current position

Local authority power to intervene
The 2006 Act concentrates on the powers available to local authorities 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 resolve their difficulties quickly by working effectively with the local authority.

Most schools deemed to require significant improvement will be found to be performing satisfactorily only 12 months later. Intervention is, therefore, rare.

Further provisions in the 2006 Act cover the issuing of formal warning notices by local authorities to schools. These are reserved for schools that might not be performing sufficiently poorly to be considered ‘inadequate’ by Ofsted, but are nevertheless poorly performing in relation to their pupil intake or past results, or in comparison to similar schools.

Schools that perform poorlyAs before, intervention in such cases is rare, with concerns usually tackled by constructive dialogue, and consideration of necessary support. Discussions would normally take place between the ‘school improvement partner’ (or, in the future, the ‘national challenge adviser’ of the local authority) and the head teacher and governors of the school.

Formal warning notice
Local authorities can consider issuing a formal warning notice only in limited circumstances:

  • the relationship between the local authority and school must have completely broken down — so that all available channels to engage with the school have been exhausted
  • there must be: a likelihood that the performance of the school will remain poor without intervention; or a breakdown in the management of the school; or a threat to pupil or staff safety.

The school has 15 days to make representations to Her Majesty’s Chief Inspector in appeal of the decision to issue a notice.

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

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

Interim executive board
While these local authority options are mostly self-explanatory, the notion of an interim executive board is worth further consideration.

Under the Education Act 2002, a local authority can give notice to a school’s governing body and the Secretary of State of its intention to appoint an interim executive board for an interim period. This period may be defined at the outset or may be determined later by giving notice to the governors and Secretary of State.

The minimum number of members of the interim executive board is two, but members can be appointed later.

Once appointed, the board acts in place of the school’s governing body for an interim period in an attempt to assess and redeem the failing school.

Powers of the board
The interim executive board 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. It can, at any time during the interim period, make a recommendation to the local authority and Secretary of State that the school be closed.

A recent example of appointment of an interim executive board was in June, when Peterborough City Council stepped in to replace the governing body of St John Fisher School just 48 hours after it had been placed on a list of ‘failing’ schools, against a background of alleged racist bullying towards Polish pupils.

The council said the interim period would last a year, and highlighted the previous successes of interim executive boards.

Do they work?
Research has shown a generally low success rate for the 80 or so interim executive boards that have so far been introduced. There is, therefore, some controversy about ministerial recommendations to use interim boards as part of the National Challenge Campaign (see below).

Powers of the Secretary of State to intervene

The 2006 Act gives the Secretary of State powers to intervene similar to those of local authorities. Local authorities are expected to use their powers before the Secretary of State would need to intervene, other than in exceptional cases.

So, the Secretary of State has less specific powers in relation to schools. Like local authorities, s/he can require an Ofsted inspection, and appoint governors or an interim executive board to schools that have failed an Ofsted inspection. S/he does not, however, have any power against schools that have been given a formal warning notice.

Note that neither local authorities nor the Secretary of State has any power to intervene in schools that have not failed an Ofsted inspection or are without a formal warning notice.

Unlike local authorities, the Secretary of State has the power to direct a local authority to enter into an arrangement to obtain advisory services for schools that have failed an Ofsted inspection.

  • this power exists when the Secretary of State feels that the authority has been, or will be, ineffective in improving the school’s performance, or where there are a disproportionately large number of schools requiring intervention from one local authority.

The Secretary of State also has the power to intervene directly in the running of a local authority, if s/he considers that there have been bad judgments made in relation to the provision of children’s services.

The need for new powers

Though the 2006 Act has only been implemented since April 2007, the Government claims that there is evidence that the legislation has not been used effectively.

In particular, formal warning notices are not being issued against schools when they should be, leaving local authorities (and the Secretary of State) unable to intervene.

What is the evidence?
The Government has given three examples to support its case:

  • Local authorities are documenting concerns about schools, but taking no action until Ofsted inspections more than 18 months later. The Government said that it was impossible for local authorities to justify not taking some action during this time without any signs of improvement — even taking into consideration reasonable attempts to deal with the concerns on a more informal basis.
  • Local authorities are not intervening in schools that have not performed sufficiently badly to have failed an Ofsted inspection, but have been stuck with unacceptably low attainment levels for years with little hope of future improvement.
  • There is a small number of formal warning notices issued despite the high number of opportunities. The Government said that this did not reflect successful informal action since there were still many schools with long-standing problems.

Consultation
Ed Balls, the secretary of state for children, schools and families, wrote to all local authorities on 3 July 2008, outlining plans to enhance the existing powers to intervene in schools within the forthcoming Education and Skills Bill.

He attached a consultation document for schools’ consideration. The consultation was launched on the same day with responses required by 25 September 2008. Results of the consultation and the response are due by February 2009.

Proposed new powers

There are two areas of proposed new powers for the Secretary of State. The first relates to local authorities (LAs) issuing formal warning notices, and the second to LAs making arrangements for advisory services.

Formal Warning NoticesThere are a number of circumstances when formal warning notices can be issued under existing legislation. The new law encourages more frequent use of notices. It will identify the types of school, outside Ofsted categories, that formal warning notices should target.

These schools are:

  • those with sharply declining performance, including those still meeting government targets
  • schools with persistent low attainment
  • schools that have relatively good attainment, but have not shown signs of improvement for many years or where attainment is actually poor given the pupil intake and environment of the school

Formal warning notices
The Secretary of State will be able to require LAs to consider the use of formal warning notices, when a school’s performance would justify them, based on their consideration of all relevant, recent data on the school.

LAs will have 10 working days to respond to any such order. The response must indicate either that the LA will issue a notice within five working days, and send a copy to the Secretary of State; or that it has considered issuing a notice and states the reasons for not doing so. In the latter case, the LA must send a copy of the response to Ofsted.

The new law will also allow the Secretary of State to appoint governors or interim executive boards in more circumstances than before. They will now be able to make these appointments even when schools have been issued with a formal warning notice.

Advisory Services
The new law will expand the circumstances when the Secretary of State can compel an LA to seek advisory services to when an LA simply maintains a large number of schools. Unlike under the old law, this power will arise when these schools are performing badly relative to their circumstances, even though they may not have failed Ofsted inspections.

Controversy
The proposals to increase government powers have been criticised by MPs, local government, education experts and schools and teachers. It has been said that while ministers have accused LAs of not acting against failing schools, LAs were actually told that their powers should be used only in the worst cases.

Some ask what the point is of increasing the powers of a Government that rarely uses its existing powers to act against failing schools. The Government has only required an Ofsted inspection of a school once over recent years, has never used its power to close a school and has only appointed an interim executive board twice since being given the power to do so in 2002.

National challenge to schools

The proposed new powers (see below) have been put forward very soon after Ed Balls announced his National Challenge to Schools. This campaign aims to improve standards in the 638 National Challenge schools (where less than 30 per cent of pupils achieve 5 A* to C grade GCSEs) by spending £400m on helping head teachers, one-to-one tuition for struggling pupils and further education for teachers.

Schools will be required to produce plans showing how standards will be raised by 2011 or face being closed or turned into trust or academy schools.

In the meantime, the Government has recommended that interim executive boards be appointed to help these schools. Many believe this, rather than any failure on the part of local authorities, to be the true motivation behind the new legislative powers to allow the Government to appoint interim boards in wider circumstances.

General disapproval

The powers of local authorities to intervene in schools causing concern have not been in place for very long. Nevertheless, the Government believes that the powers have not been used as intended. It therefore wishes to implement new legislation focused on giving it more power and making the existing provisions more effective.

The arguments for the new powers, and their details, have been met by general disapproval. Only time will tell the extent of any new legislation and its effect on local authorities and schools.

Mark Blois is a partner at Browne Jacobson

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