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Statutory warning notices – FAQS

3 June 2016

Statutory warning notices are a well-established school intervention measure. The powers and process relating to the issuing of warning notices is set out in the Education and Inspections Act 2006. However, in April 2016, following the majority of the Education and Adoption Act (EAA) coming into force, key changes were made to the law relating to warning notices.

What changes did the EAA make to the law on warning notices?

A number of significant changes took effect on 18 April 2016:

  • the power to issue a warning notice to a maintained school is now available to the Secretary of State (or the Regional School Commissioners (RSCs) on her behalf), as well as local authorities
  • the time period within which a school must comply with a warning notice is no longer a prescribed period of 15 working days. Instead, it is for the local authority or RSC (whichever is issuing the warning notice) to specify the compliance period
  • the right for the school to contest a warning notice by making representations to Ofsted has been removed.

Whilst the RSCs do now have the power to issue warning notices to maintained schools, it is expected that this role will still fall largely to the school’s local authority. We anticipate that the RSC will only get involved if the local authority is not seen to be using its powers where it should be. The EAA also introduced rules to cover the situation where both the RSC and the local authority have exercised, or are seeking to exercise, their powers in relation to warning notices.

In what circumstances can a local authority or the RSC issue a warning notice?

Importantly, there are three statutory grounds upon which a warning notice may be issued. These are:

  1. that the standards of performance of pupils at the school are unacceptably low, and are likely to remain so unless the local authority or RSC exercises their intervention powers
  2. that there has been a serious breakdown in the way the school is managed or governed which is prejudicing, or likely to prejudice, such standards of performance
  3. that the safety of pupils or staff of the school is threatened (whether by a breakdown of discipline or otherwise).

The local authority or RSC needs to be satisfied that at least one of these grounds is met before issuing a warning notice. The warning notice itself must also be clear about which ground(s) the local authority or RSC is issuing the warning notice and should provide evidence of this determination.

Can a school be served with a warning notice on the basis that it is below floor standards?

Being below floor standards is not in itself a ground upon which a warning notice can be served. The local authority or RSC (as applicable) is expected to “consider the school in the round, take account of its context, and consider data and other evidence of the school’s performance and capacity to improve”. However, guidance does suggest that being below floor standards may be a factor for meeting ground (a) above. Indeed, the Education and Inspections Act expands on what might constitute low standards of performance, stating that this will apply with reference to:

  1. the standards that the pupils might in all the circumstances reasonably be expected to attain
  2. where relevant, the standards previously attained by them, or
  3. the standards attained by pupils at comparable schools.

Chapter 4 of the statutory guidance, Schools Causing Concern, sets out further information on the 'objective indicators' which suggest that the issuing of a warning notice would be appropriate.

Can a school be served with a warning notice on the basis that it is 'coasting'?

No. The grounds for the issuing of a warning notice are set out above. Where a school or academy is categorised as coasting by the Secretary of State, it will become 'eligible for intervention' by virtue of that designation instead and there will be a different route for any intervention deemed necessary.

What are the potential implications of being served with a warning notice?

If the warning notice is not complied with within the relevant compliance period, the school will automatically become eligible for intervention. This means that a range of other intervention powers become automatically available to the local authority and Secretary of State, for example, the power to replace the school’s governing body with an interim executive board and the power to make an Academy Order in respect of the school.

It should be noted that where a school become eligible for intervention due to failure to comply with a warning notice, the following intervention powers must be exercised within two months of the end of the relevant compliance period:

  • power (of the local authority or Secretary of State) to require the governing body to enter into arrangements
  • power of the local authority to appoint additional governors to the school’s governing body
  • power of the local authority to suspend right to delegated budget

What should a school do if it is served with a warning notice?

As explained above, there are potentially serious consequences to being served with a warning notice. As such, it is important that the school acts quickly to review the warning notice and note the relevant compliance period.

The warning notice must set out the action that the local authority or the RSC requires the governing body to take in order to remedy the matters of concern (which should be based on one or more of the three grounds). It may be that the school can carry out the required action, in which case, clear compliance with the warning notice within the relevant compliance period will ensure that the school does not become eligible for intervention and there should be no long-term impact on the school. In this case, the school will not become eligible for intervention by virtue of the warning notice.

However, if it is not possible for the governing body to comply with the required action, or the action required is unreasonable, the school should seek further legal advice immediately.

What if the warning notice itself is unclear or flawed?

Historically, this is not uncommon and we have seen many examples where local authorities have not followed the correct process for issuing a warning notice and/or have produced a warning notice which is not compliant with the requirements of the Education and Inspections Act.

Before April 2016, a school could make representations to Ofsted regarding a flawed warning notice but this right has (controversially) now been removed. The options for challenging a warning notice are therefore now less straightforward. However, challenges are still possible, including via the route of judicial review. In this scenario, we would recommend obtaining further legal advice so that bespoke advice for your school’s situation can be provided.

Is it possible for an academy to be served with a warning notice?

Not under the process set out in the Education and Inspections Act – these provisions only apply to maintained schools. However, the funding agreement for academies gives the Secretary of State the power to issue a 'Termination Warning Notice'. The grounds are very similar to the grounds set out in the Education and Inspections Act and it follows a similar process.

Non-compliance with a Termination Warning Notice could, as the name suggests, ultimately result in termination of the academy’s funding agreement by the Secretary of State. In the event of being served with a Termination Warning Notice, the academy will need to carefully review the terms of its funding agreement and may wish to consider seeking independent legal advice.

Can a maintained special school be served with a warning notice?

Yes. The legislation applies to a community or foundation special school in the same way as a mainstream maintained school.

Can a Pupil Referral Unit (PRU) be served with a warning notice?

No. The legislation on warning notices does not currently apply to PRUs.

From 27 June 2016, PRUs will be subject to more intervention powers (namely Academy Orders) by the Secretary of State based on their Ofsted grade but there is currently no ability for them to become eligible for intervention as a result of a warning notice.

Where can I find out more about warning notices?

You may want to also refer to the Schools Causing Concern guidance (March 2016), the latest version of which has been in force since 18 April 2016.

For any further advice on your school’s situation, please contact us.

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