0370 270 6000

Implications of the Education and Adoption Bill

4 June 2015

After pre and post election promises to tackle failing and ‘coasting’ schools, within just four weeks of the election result, the Government has published a new Education Bill designed to further progress its reform of the schools sector. The Education and Adoption Bill includes measures to strengthen the Secretary of State’s school intervention rights and its powers to force schools to become academies. Below we explain and comment on key parts of the proposed new legislation.

Coasting schools

There has been a great deal of press coverage on the topic of so-called ‘coasting schools’ and the pressure that might be placed on them to improve under the new Government. This is reflected in the new Bill through the legal definition of ‘eligible for intervention’ (EFI) being widened to cover coasting schools.

Being categorised as ‘coasting’ will cause a school to become EFI. EFI status then gives both the local authority and the Secretary of State various intervention powers. For example, the imposition of an interim executive board, the requirement for the school to enter into arrangements (such as collaboration with another school) or, perhaps most significantly, the power for the Secretary to State to make an academy order in respect of that school.

The Secretary of State will be required to notify a school if she considers it to be ‘coasting’. There has already been debate within the sector about exactly what characteristics will trigger a school being classed as coasting and also how the Government will prioritise intervening in such schools. The Bill makes provision for regulations to be put in place to cover what coasting means and we understand that the Government intends to consult on this over summer.

Warning notices

Local authority powers to issue a school with a warning notice on certain grounds (for example, low standards) have been in place for some time. In addition, under existing law, the Secretary of State can direct a local authority to issue a warning notice. However, the Bill proposes new legal powers to enable the Secretary of State herself to directly issue a warning notice to a governing body without having to rely on the local authority to act.

The grounds upon which a warning notice can be issued remain as before but, crucially, the Bill removes the governing body’s right to challenge the warning notice by making representations to Ofsted. In addition, the 15 working day ‘compliance period’ (within which the governing body has to either comply with the warning notice or appeal to Ofsted) will be abolished. This leaves the local authority or the Secretary of State (depending on who is issuing the warning notice) free to set the timescales within which the warning notice must be complied by.

Despite the removal of a statutory appeal right to Ofsted, public law remedies will remain available to governing bodies. For example, where a governing body considers that a warning notice has been issued unfairly or with procedural flaws, it could explore challenging the warning notice, or indeed any decision taken by the local authority or Secretary of State as a result of it, through judicial review. However, there is no doubt that bringing judicial review proceedings is a much more time-consuming, costly and risky option compared to the existing right to make representations to Ofsted.

As before, the effect of non-compliance with a warning notice will be that the school becomes EFI, thereby making available to the Secretary of State and local authority a range of formal intervention options, including the making of an academy order.

Forced academisation

The Government promised that it would actively progress the academy conversion of failing schools and the parts of the Bill which amend the Academies Act 2010 see these intentions clearly translated into legislation.

For schools graded inadequate by Ofsted (those in special measures or deemed to be requiring significant improvement), the Bill places a statutory duty on the Secretary of State to make an academy order in respect of any such school. The change in language here is significant. Whereas the Academies Act currently states that the Secretary of State ‘may’ make an Academy Order in respect of such schools, that is changing to a ‘must’. The effect will be that the ability to challenge such a decision on the grounds that it is unreasonable or irrational will be removed, or certainly very much diminished, as the Secretary of State will have a statutory obligation to make an academy order in those cases.

For other schools which are EFI but not graded inadequate by Ofsted (such as those who have not complied with a warning notice or have been designated as ‘coasting’ schools), the Secretary of State’s powers to make an academy order remains discretionary.

Consultation on academy conversion

The Bill also proposes some changes around the process of the academy conversion of EFI schools, which are clearly designed to prevent campaigners or resistant local authorities from delaying a school becoming a sponsored academy.

In cases where a school is becoming an academy because the Secretary of State has made an academy order due to it being EFI, the statutory duty to consult is to be removed. This seems sensible as the concept of genuinely consulting stakeholders on a conversion which the Secretary of State has already directed must occur was always difficult to reconcile. Many academy sponsors may of course still be keen to engage with stakeholders during the conversion process but they will need to be mindful of distinguishing the provision of information from carrying out an actual consultation process.

Where such EFI schools are foundation or voluntary schools, the Bill retains a statutory duty on the Secretary of State to consult the relevant body (for example, in the case of a faith school, the Diocese) although only on the point of who the school’s sponsor will be, not the conversion itself.

Co-operation with the academy process

As well as diminished consultation requirements which will diminish the relevance of opposing stakeholders, the Bill places a direct legal duty on the governing body of the school itself and its local authority to take ‘all reasonable steps’ to facilitate the school’s academy conversion. This again applies only where an academy order has been issued by the Secretary of State due to the school being EFI.

Lack of co-operation from governing bodies in this situation is currently generally dealt with by replacing the governing body with an interim executive board. However, this new ‘reasonable steps’ provision may well reduce the need for that procedural step. Local authorities opposed to the academies agenda also caused a number of headaches for the Government under the last administration. Their opposition could not be dismissed quite so easily, particularly where they refused to enter into legal documents necessary for the conversion to take effect. This new legal duty placed directly upon local authorities aims to prevent such obstruction. It is also coupled with the right of the Secretary of State to direct the local authority or governing body to take specific steps in order for the conversion to take place and timescales for doing so, thereby giving the Secretary of State the ability to very much drive forward the process.


There is no doubt that if this Bill is enacted without further amendment, it will represent a significant increase in the Secretary of State’s intervention powers. With such legislation in force, it is difficult to see how a failing school would be able to escape academisation. For ‘coasting’ schools, we await some further detail. However, even where a school does not satisfy the legal definition of coasting (whatever that may turn out to be), the ability for the Secretary of State to issue a warning notice directly offers a further, and relatively unfettered, means of intervention which could ultimately end in academy conversion.

The Bill is not yet in force so none of these powers are in place at present. However, we expect a relatively speedy route to enactment and once in force, the Government’s agenda suggests there will be no delay in relying on this new legislation. We will be closely following its passage through Parliament and keep you updated on any amendments and its implementation.

Focus on...

Legal updates

Keeping Children Safe in Education 2022: Online searches for shortlisted candidates

The two biggest changes in the new safeguarding guidance revolve around sourcing high quality governor and trustee training and the new requirement to carry out online searches for shortlisted candidates. This article focuses on how and when to carry out online searches. In the coming week we will follow up with everything you need to consider when sourcing high quality governor or trustee training.



Taking the next step – forming or joining a multi academy trust

Browne Jacobson has been delighted to again work in partnership with our colleagues and friends at the National Governance Association (NGA) and the Association of School and College Leaders (ASCL).



Judicial Review of school exclusion reconsideration dismissed on all grounds

The recent case of R (on the application of A Parent) v Governing Body of XYZ School [2022] EWHC 1146 (Admin) provides some welcome and reassuring guidance to governing boards on the exclusion reconsideration process.


Legal updates

Local authority academy conversion powers

A question we often get asked by schools is “can I be forced to become an academy?” The answer to that question to date has centred around whether a school is eligible for intervention and, primarily, its Ofsted’s grade.