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Accountability and regulation


Accountability & regulation

Education 10 year vision

What does effective accountability look like?

It was acknowledged by the panel that if we were creating an accountability and regulatory structure from scratch, we would not be starting in the place we now find ourselves. Historically, policy has often been implemented in an ad hoc way, with the relevant Government tearing down old systems, adding new layers and attempting to justify its reform. As one panel member put it “What is very helpful to do is to think about if we were starting afresh, what sort of system would we create”.

When considering what an effective accountability and regulatory regime should look like, it is important to start with who it needs to serve. Any education system must deliver to the needs of young people, their parents, employers, the local community and the taxpayer. With this in mind, there was consensus that schools should be given as much autonomy as possible but that this needs to be supported with robust local oversight which is, in turn, held properly, competently and independently to account (by both Ofsted and schools).

The panel discussed the role of ‘legitimacy’ within any system of accountability; in the words of one panel member “legitimacy is an incredibly important concept”. The panel felt that legitimacy in the system is critical and this legitimacy must be delivered in the eyes of all stakeholders. Legitimacy in this context is provided in part by law but also through competence, independence and integrity.

The panel identified that it is also important to balance the inevitable tension between accountability and autonomy. Schools are part of their communities and therefore it is important, on a local level, not to completely disempower parents and children but to strike the right balance between representation and skills on school boards. Schools need a place in their communities and this balance is critical to retaining this. The panel’s discussion also touched on the importance of remembering that the local community is more than just parents.

What is very useful to do is to think about if we were starting afresh, what sort of system would we create?

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Arguably, at its simplest, there are two key ingredients to effective accountability in a state funded schools system; educational performance and effective use of public funds. With regard to the latter, the panel were keen to discuss the perception that efficiency amounts to cost-cutting and argued that where this arises it should be replaced with a more sophisticated approach. In public sector terms, the correct phrase to use is ‘value for money’. Perhaps the best explanation of this comes from the National Audit Office (‘NAO’) through its work.

The NAO uses the three ‘Es’ to assess whether spending represents “the optimal use of resources to achieve the intended outcomes”. These are:

  • economy: minimising the cost of resources used or required (inputs) – spending less
  • efficiency: the relationship between the output from goods or services and the resources to produce them – spending well
  • effectiveness: the relationship between the intended and actual results of public spending (outcomes) – spending wisely.

Ofsted’s role is more than acting as an inspector; its wider value can easily be, and is often, overlooked. Ofstedhas played a constructive role in taking a step back and taking a longitudinal view as to what is happening. For example, a panel member cited Ofsted’s ‘Unseen Children’ report which looked back over 20 years to provide a view to really challenge the entire system at a sector level on access to education and closing the achievement gap. This type of review and analysis will be particularly relevant in an increasingly academised system. Additionally, in a confusing system, there needs to be the ability to identify what is good practice or ‘areas of promise’.

Principles of system design

The panel discussed key elements of an effective system and touched on a range of core elements that need to be present in an effective system, including:

  • a non-political and expert body to regulate and inspect, which has the acceptance of both the public and professionals
  • even-handed accountability (regardless of type of school, geography, size)
  • clarity of roles between the different ‘actors’ within the framework
  • a body that checks the effectiveness and efficacy of Government policy, in the way it is implemented in schools
  • strong and co-ordinated voice of the educator
  • understanding the difference between efficiency and effectiveness
  • a body capable of looking at, understanding and judging the effectiveness of the ‘corporate centre’ of school groups
  • ability to understand and effectively regulate for vulnerable groups
  • a body that, once it has diagnosed a problem, understands what and how long it will take to address that problem and then, with appropriate safeguards on checking progress, allows organisations sufficient time to make the necessary improvements
  • a body or bodies that have demonstrable consistency of ability to make judgements
  • a body that resists both a ‘one size fits all approach’ and ‘compliance model’. The body should be sophisticated enough to be able to look at, understand and judge the effectiveness of different approaches
  • in a self-improving school system, the accountability and regulatory regime should be flexible and sophisticated enough to let excellence emerge from the school system itself.

There is lack of clarity about who does what and who has the responsibility... who is making the judgements.

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Current challenges to an effective system

As identified in the introduction, our schools system has over the last 20 years fundamentally changed, perhaps beyond recognition. There is no doubt that schools, colleges and academies operate in an increasingly atomised sector. It is clear that we are only part way through the delivery of current reforms and therefore it is important to take a longer term view as to what accountability structures will be needed once the current reforms are fully implemented.

In the words of one panel member, “we are living in a period of unintended consequences”. With the system still in a state of flux, part way through significant structural changes, this also places pressure on existing regulatory bodies structures such as Ofsted, whilst also presenting significant challenges for the emerging new bodies such as the RSCs and Head Teacher Boards. There was a real feeling amongst the panel that the regulatory system schools face “is not joined up at the moment”. One panel member felt that “there is lack of clarity about who does what and who has the responsibility… who is making the judgements”.

The system currently provides for the National School Commissioner and the group of RSCs supported by Head Teacher Boards (‘HTBs’) to have an integral role in the accountability of schools. A glance in the direction of future policy indicates that their role will only strengthen, whilst the parts that local authorities and, arguably, Ofsted have to play will be simultaneously eroded. Previously, it was Ofsted’s role to ‘diagnose’ and the local authority’s role to ‘arrange treatment’. In moving to a structure where the local authorities role is reduced and RSCs appear involved in both diagnosis and treatment, there is a blurring of responsibilities which is causing confusion for schools and weakening the effectiveness of the system overall. Whilst policy makers may argue that the roles are distinct and clear, the panel felt this is not a view shared by many schools, parents and other stakeholders.

The relationship between Ofsted and the RSCs is something that the Department for Education (DfE) has felt the need to clarify. It states on its website:

Ofsted is responsible for inspecting and reporting on the quality of education that schools provide. RSCs decide whether intervention is necessary based on Ofsted’s inspection results and accountability measures for school performance. The RSCs work with the relevant Ofsted regional directors to make sure that appropriate information is shared.”


We are living in a period of unintended consequences.

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On the surface this is straightforward enough. The RSCs are of course not responsible for inspection and they commission others to actually deliver intervention work. However, perhaps the heart of the question lies in that phrase “…and accountability measures for school performance”. Yes, Ofsted grades still matter but much of the Government’s agenda suggests a step away from reliance on Ofsted’s judgements. We have seen this, for example, in the introduction of ‘coasting schools’. A coasting school will be subject to intervention from its RSC but its Ofsted grade will be of no relevance in triggering this intervention. Equally, when addressing its mission to improve the designation of system leaders in the White Paper, the Government is clear that it wants to rely on data, not Ofsted judgements.

There appears to be some signs of a shift whereby policy is not being created in reaction to Ofsted’s findings but rather the role of Ofsted is being moulded to fit the system that the Government wishes to create (which is increasingly driven by RSCs). ‘Turf-war’ may be too strong a phrase but an undercurrent of tension between the responsibilities of Ofsted and the Regional School Commissioners appears evident as schools become increasingly answerable to the RSCs.

The RSC role has already attracted plenty of commentary and speculation on matters such as capacity, KPIs and independence. However, there is arguably a wider point which feeds into the hurdles we must overcome to build something better, and that is one of legitimacy. While most educationalists would readily identify Ofsted’s imperfections, they would also be likely to agree that it is a body which legitimately fulfils its clear functions and does so with integrity and transparency. In contrast, there was a view amongst the panel that there appears to be a genuine lack of public acceptance towards both the RSCs and the EFA. This may be attributable (whether in whole or in part) to their novelty, their intrinsic link to politicians or the turbulence associated with the speed of recent reform.

In the last five years, we have witnessed the creation and expansion of hundreds of multi-academy trusts, yet there remains an air of suspicion, particularly around large groups. We have seen the introduction of focused inspections for multi-academy trusts but without any formal extension of Ofsted’s powers or a bespoke framework. There was deep concern amongst the panel that the inspection regime for multi-academy trusts is opaque and disconnected in terms of bringing together inspection of the organisation as a whole; in that neither Ofsted (as inspectorate) nor the EFA (as regulator) properly understand the associated governance arrangements or are currently capable of judging corporate effectiveness. There was also concern that the system was in a position where the regulators are overly-dependent on the multi-academy trusts themselves to provide answers on how that system should operate.

The part that local authorities will have to play in school accountability may be easier to predict once we arrive at a fully academised system. However, the route towards this could continue to create a confusing picture locally. The White Paper and the subsequent proposed legislation providing that all schools in poorly performing authorities will have to convert will inevitably mean that some authorities will no longer maintain any schools whereas in others they will still maintain schools.

The Government explains its intention to transfer responsibility for school improvement away from local authorities as resolving an existing problem of conflict. Local authorities should be acting as “champions for all parents and families”, challenging school providers to deliver better outcomes, rather than being the accountable providers of education themselves. Given the rate of academy conversion in some geographical areas, is this dynamic actually already at play to some degree in certain places?

The concept of local authorities being ‘champions’ for parents is an interesting one and reminds us that an education system must deliver to the needs of parents and young people. In addition, one panel member commented that the “rhetoric around maintained schools and academies hasn’t always been even handed. That is very debilitating if you are trying to build a system of trust”.

Finally, the panel felt that the pace of change and reform needs to be acknowledged as putting significant additional strain on the system. In moving forwards, developments and changes must be done sympathetically to the pace and realities of reform.

Solutions

The panel identified that in some respects, leaving aside the drive for a fully academised system, the recent education White Paper did pursue the concept of system integration, for example in its ideas around teaching schools. However, there was a feeling amongst the panel that there needs to be a concerted effort to develop further system integration. One panel member expressed unease about a lack of integration and a concern that “critically losing these channels of communication and trust into, for instance, child protection, after school activities, community use …”.

The panel discussed the need for certainty on who is making what judgements. The body making judgements needs to be well-equipped and capable of assessing corporate effectiveness across a diverse range of providers and situations. Crucially, it needs to be, and remain, independent. If that body is to be Ofsted, the panel felt it needs support to protect its integrity and independence.

The rhetoric around maintained schools and academies hasn’t always been even handed. That is very debilitating if you are trying to build a system of trust.

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The panel discussed the question raised by one panel member “who is going to regulate, inspect and monitor the quality of the centre?” In particular, the panel identified that it was of critical importance to solve the issue of how the system assesses ‘corporate effectiveness at the centre of multi-academy trusts’. In particular, there was a general recognition that external audits alone cannot be relied on to deliver this. There was broad consensus amongst the panel that there is a pressing need for a proper inspection regime for multi-academy trusts, both educationally and organisationally. This is vital to enable trust amongst all those whom the system must serve.

From an educational oversight perspective, the panel identified that the existing regime of ‘focused inspections’ must be built upon and developed so that the inspectorate has an expert understanding of what is working and what may not be working in a multi-academy trust structure (regardless of its size) and that leaders within a multi-academy trust can work to an identifiable and informed framework which goes beyond the contents of the Academies Financial Handbook.

From an organisational oversight perspective the panel identified that there needs to be a clear decision as to who is doing that role and then there needs to be investment in supporting that body become fit for purpose to effectively deliver that role. As part of the preparation for taking on that role there also needs to be the development of stakeholder confidence in the ability of the body to carry out the role. A number of the panel were in favour of Ofsted taking on this role whilst also recognising that it would need support and training to be able to carry it out effectively. In the words of one of the panel “I’ll trust their [Ofsted’s] judgements. They are not perfect but there is a consistency of ability to make judgements to look at the context of children”. This was a sentiment echoed by other panel members.

The panel also discussed that if both the EFA and Ofsted are to continue to exist, a proper infrastructure needs to be put in place to enable them to work together more effectively. However, a long-term aim would be to bring together the different core aspects required by having one regulator to ensure that academy trusts deliver:

  • effective governance and are operated in a manner that is financially viable regardless of size or complexity
  • value for money for the public purse
  • good or better educational outcomes.

The discussion also identified that the role of RSCs also need to be factored in. If the EFA and the RSCs are to play effective roles, the panel felt there is clearly work to be done to convince stakeholders of their legitimacy and in defining roles and communicating that clearly with all stakeholders.

Whoever carries out a regulatory role it will be important to safeguard against, what some panel members identified as, the ‘tendency of bureaucracy’ to standardise approach so that regulators can specify that every organisation should look the same in order that the regulators understand what they are looking at so they can then carry out their regulatory duties. A standardised approach is a material counter-weight to the founding philosophy of academies, autonomy and a self- improving system. This is clearly a significant challenge laid down by the panel.

To deliver it arguably requires a well-resourced and sophisticated regulator but it is likely to be a very important feature of an effective system of the future (where that system is built on the principle of a self-improving system).

There was a feeling from within the panel that in a self-improving system the Government should transfer as much as possible of the regulatory and accountability role to independent bodies free of political influence. The move in the Academies Act 2010 to treat academies as exempt charities where the Secretary of State for Education is the ‘Principal Regulator’ of academies under charity law, rather than as charities registered with the Charities Commission (as was the case with early academies) was seen by some as a missed opportunity to add helpful oversight, in terms of corporate governance. There is clearly a decision for Government on whether to invest within its existing agencies to support effective regulation and accountability or to provide resources to enable bodies such as the Charities Commission to play a future active role in regulating academy trusts.

The phrase ‘supported autonomy’ is a noticeably new phrase that is being used by policy makers; it was used ten times in the White Paper, ‘Educational Excellence Everywhere’. It means “strengthening the infrastructure that supports all schools and their leaders to collaborate effectively”. However, there can also clearly be a connotation of rapid intervention when things go wrong and it relies heavily on increased capacity within schools themselves. The concept of ‘supported autonomy’ however is an interesting one which was picked up by the panel, both at system level and school or school group level. Whether you refer to ‘legitimacy’ or ‘trust’, at both levels it must be present throughout the system.

Finally and significantly, members of the panel were concerned about system oversight of education for children with special educational needs and disabilities. With current spending at circa £5-6 billion per annum, it is in danger of being overlooked as a relatively small part of the overall education budget. However, it was discussed within the panel that there needs to be immediate action to consider the approach that will be needed to deliver effective accountability for the high needs expenditure because of the additional complexity that sits behind the delivery of SEN education. It was felt that the system needed to act now to consider what this will look like in an academised system in order to protect the most vulnerable young people.

Supported autonomy means strengthening the infrastructure that supports all schools and their leaders to collaborate effectively.

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Browne Jacobson would like to thank the key education sector stakeholders who attended our latest roundtable discussion, chaired by Mark Blois, Head of Education at Browne Jacobson.

This report reflects the thoughts and views that were introduced in a white paper Browne Jacobson issued in preparation for the event and then developed at our roundtable. It puts forward a series of key recommendations for further consideration by stakeholders on delivering an effective accountability and regulatory regime and about what the sector needs to do to support the development of the next generation of leaders. In the report, where we refer to the panel, we are referring to the attendees of the roundtable as a whole.

The content of this report does not reflect the views of any one individual who attended or the organisation they represent. The information and opinions expressed in this report are no substitute for full legal advice, it is for guidance only.

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This report is also available as a PDF that can be downloaded below.

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Mark Blois

Mark Blois

Partner and Head of Education

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Roundtable delegates

Mark Blois, (Chair), Partner and Head of Education
Browne Jacobson LLP

Paul Barber, Director
Catholic Education Service

Debbie Clinton, Board Member
Freedom and Autonomy for Schools - National Association

John Fowler, Policy Manager
Local Government Information Unit (LGiU)

Ty Goddard, Co-Founder
The Education Foundation 

Hugh Greenway, Chief Executive
The Elliot Foundation Academies Trust

Ian Hickman, Chief Operating Officer
Northern Education Trust

Emma Knights, Chief Executive
National Governance Association

Nick MacKenzie, Partner
Browne Jacobson LLP 

Fiona Millar
Writer and education journalist 

Stephen Morales, Chief Executive
National Association of School Business Management 

Lord James O’Shaughnessy
Floreat Education 

Diana Owen, CBE, Chief Executive
L.E.A.D. Multi Academy Trust 

Cathie Paine, Deputy Chief Executive
REAch2 Academy Trust

Simon Parkinson, Chief Executive
The Co-operative College

Malcolm Trobe, CBE, Interim General Secretary
Association of School & College Leaders