article
Local Authority powers to intervene
14 December 2008
The Education and Inspections Act 2006 (the 2006 Act) gives Local
Authorities (LAs) a key role in promoting high standards of
education. Moreover, it provides the legal framework for LAs 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 early action to be taken in schools when
necessary.
Despite the existing powers to intervene, the Government has
proposed to increase them further. This article analyses the
current powers of intervention, the arguments for new powers, the
proposed new legislation itself and the controversy surrounding
it.
The current position
Powers of LAs 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 to be performing
satisfactorily only twelve months later. Intervention is,
therefore, rare.
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. As before,
intervention in such cases is again rare with concerns usually
addressed by constructive dialogue highlighting them, and
considering the support necessary to alleviate them. This would
ordinarily occur between the School Improvement Partner or, in the
future, the National Challenge Adviser of the LA with the head
teacher and governors of the school concerned.
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.
Where a school has either failed an Ofsted inspection or been
given a formal warning notice and intervention is required, a LA
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
good-performing one
- Remove the delegation of the school's budget
- Close, merge or otherwise re-organise the school
- Request an Ofsted inspection of the school
Interim Executive Board (IEB)
While these LA options are mostly self-explanatory, the notion
of an Interim Executive Board is worth further consideration.
Under the Education Act 2002, a 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. This period may be defined at
the outset or may be determined later by giving notice to the
governing body and Secretary of State.
The minimum number of members of the IEB is two, but members can
be appointed at a later time. 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.
A recent example of the appointment of an IEB occurred in late
June this year when Peterborough City Council stepped in to replace
the governing body of St John Fisher School just forty-eight hours
after it had been placed on a list of “failing” schools, against a
background of alleged racist bullying towards Polish pupils. The
Council stated that the interim period was to last for a year and
highlighted the previous successes of IEBs.
Other research, however, has shown a generally low success rate
for the eighty or so IEBs that have so far been introduced.
Accordingly, there is some controversy about Ministerial
recommendations to use IEBs as part of the National Challenge
Campaign (see later).
Powers of the Secretary of State to
intervene
The 2006 Act also provides the Secretary of State with similar
powers to LAs to intervene. The Government states that LAs would be
expected to use their powers before the Secretary of State would
need to intervene, unless the case was truly exceptional.
Accordingly, the Secretary of State has less specific powers in
relation to schools. Like LAs, they can require an Ofsted
inspection, and appoint governors or an IEB to schools which have
already failed an Ofsted inspection. They do not, however, have any
power against schools which have been given a formal warning
notice. Most significantly, it should be noted that neither LAs nor
the Secretary of State have any power to intervene in schools which
have not failed an Ofsted inspection or are without a formal
warning notice.
In addition, and unlike LAs, the Secretary of State also has the
power to direct a LA to enter into an arrangement to obtain
advisory services in relation to 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 LA.
The Secretary of State also has the general power to directly
intervene in the running of a LA itself, if they consider that
there have been bad judgements 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 already 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 LAs (and the Secretary of State) unable to
intervene. Three examples have been given of this evidence:
- LAs documenting concerns about schools, but no action being
taken until Ofsted inspections more than eighteen months later. The
Government stated that it was impossible for LAs to justify not
taking some action during this time period without any signs of
improvement, even accounting for reasonable attempts to try and
address the concerns on a more informal basis.
- LAs not intervening in schools, which had not performed
sufficiently badly to have failed an Ofsted inspection, but had
been stuck with unacceptably low attainment levels for years with
little hope of future improvement.
- The small number of formal warning notices issued despite the
high number of opportunities. The Government stated that this did
not reflect successful informal action since there were still many
schools with long-standing problems.
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. He also attached a consultation document for their
consideration. The consultation was officially launched on the same
day with responses required by 25 September 2008. Results of the
consultation and the response are due to be published by February
2009.
Proposed new powers
There are effectively two areas of proposed new powers for the
Secretary of State. The first relates to LAs issuing formal warning
notices, and the second, to LAs entering into arrangements to
obtain advisory services.
Formal Warning Notices
As stated, there are a number of circumstances when formal
warning notices can be issued under existing legislation. However,
the new legislation will attempt to clarify that the issue of
notices should be considered more often. Accordingly, it will
identify the types of schools, outside of 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; and
schools that may 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.
Further, 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 ten working days to respond to any such order.
Their response must either indicate that they 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 will also have
to send a copy of the response to Ofsted.
In addition, the new legislation will also allow the Secretary
of State to use its existing powers to appoint governors or IEBs in
more circumstances than previously. They will now be able make
these appointments even when schools have been issued with a formal
warning notice.
Advisory services
The new legislation will expand the circumstances when the
Secretary of State can compel a LA to seek advisory services to
when a LA simply maintains a large number of schools. Unlike under
the old legislation, 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 met with
criticism from opposition MPs, local government, education experts
and schools and teachers.
It has been pointed out that while Ministers have accused LAs of
not taking action against failing schools, such that new
legislation is required, LAs were actually told that their powers
should only be used in the worst cases.
Moreover, it is argued that it is pointless to increase
Government powers when it rarely uses its existing powers to act
against failing schools. For instance, 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 IEB twice since being given the power to do so in 2002.
Further, the new proposals have been made 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% 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. However,
schools will also be required to produce plans of how standards
will be raised by 2011 or face being closed or turned into trust or
academy schools. In the interim, the Government has recommended
that IEBs be appointed to help these schools, and many believe this
to be the true motivation behind the new legislative powers to
allow the Government to appoint IEBs in more circumstances, rather
than any argued failure on the part of LAs.
Conclusion
The powers of LAs to intervene in schools causing concern have
not been in place for very long. Nevertheless, the Government
already believes that the powers have not been used as intended. It
therefore wishes to implement new legislation focussed 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 impact on LAs and schools.
The article was first published in Sec
Ed
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