England & Wales Education and children's services

Ask the Expert: Schools White Paper reading guidance and session notes

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Following the release of the first Schools White Paper in six years, Opportunity for all: strong schools with great teachers for your child and ‘SEND Review: Right support, Right place, Right time’, LGIU members attended our first Ask the Expert session to learn how the White Paper will affect local government and ask pressing questions of our expert, John Fowler (LGIU Policy Manager).

John provided an overview of the proposals outlined in the White Paper and ran through what it means for local government. LGIU’s Chief Executive, Jonathan Carr-West, chaired the discussion to provide plenty of opportunity for questions and answers from our members – which we explore in further detail later on in this post.

The recent schools and green papers have produced mixed reactions. Following feedback from our Ask the Expert event, this blog contains insights on how to read these papers. The papers, which apply to England only, might not be long but they are complex. This blog is not a synopsis of the papers, see the LGIU’s Schools White Paper: Opportunity for All and The DfE’s SEND review – right answers? for a full overview.

Reading guidance for the Schools White Paper

Much of what follows applies to all public services. White Papers are statements of Government policy including decisions on expenditure, use and variation of current statutory powers, intentions to change those powers using parliamentary legislation and place powers and duties on other bodies, such as local authorities. Green papers are consultation papers.

Governments have only three mechanisms for influencing public services which they do not directly control: exhortation, law, and funding.

Exhortation

Although now gone from the statute book, the Secretary of State for Education once had a duty to promote the “national policy” for education. The “national policy” was not defined and is one of the reasons why there has been an explosion of education legislation (see below) and the replacement with “statutory guidance” issued by the Secretary of State, that is guidance which designated bodies, such as local authorities and local authority maintained school governing bodies, must “have regard to” in their decision making. Arguably, any guidance issued from central government must be considered and how guidance is used locally is changing although Government helpfully flags this up, especially with the codes on admissions (which must be followed) and on special educational needs and disability. Most “guidance” relating to children’s social care must be followed.

Government policy intentions issued in White Papers do not have the force of law. Local authorities might wish to follow them for reasons of expediency, good decision-making, and on political grounds. Often white papers reflect existing local government good practice. With so much education legislation in existence (see below), governments can find ways of converting policy intentions and exhortations into statutory requirements without recourse to legislation, so care is required if a local authority wishes to reasonably take a view which is contrary to a Ministerial policy. That said, white papers are mainly about intentions and do not have to be followed.

Law

Governments can ask, and usually receive, parliamentary consent to legislation to create bodies with specific powers and duties, amendment those functions, and close the bodies down and transfer the functions elsewhere or extinguish the functions. There has been approximately a seven-fold increase in the volume of education law in England and Wales in the last 35 years judging by the size of Butterworth’s printed Law of Education. This includes secondary legislation, whether approved by Parliament or not, guidance, whether described as statutory or not, and case law.

Much relates to the transfer of functions, which were not specified in detail, to governing bodies where there is a need to do so. Much is important especially to protect the jobs of those working in the education service, and to protect the education estate. Frequently, issues are legislated where existing legislation would suffice. What is clear is that there is too much, and the Department for Education has taken on a role of interpreting the legislation with varying degrees of accuracy. What is not in doubt is the ministerial track record of over 35 years of legislating to ensure ministerial policy intentions are carried out. However, ministerial intentions can be carried out indirectly using what is known as the “accountability system” seen for example in using the inspectorates to use their role of inspecting provisions to report whether ministerial intentions are being carried out by school government bodies, for example.

Funding

Until 2006, central government need local government involvement in education to fund approximately 10 to 15 per cent of school expenditure. Now, local government directly funds a few administrative costs (and school transport) and schools are funded through a specific grant, the Dedicated Schools Grant. As part of these changes, the Secretary of State for Education (within an overall spending envelope approved by the Treasury and Parliament) has powers with very light scrutiny to fund bodies as the office holder chooses. This has resulted in an increase to bodies and agencies providing national services for education providers, and competitive arrangements to be awarded funds, which are outside direct scrutiny, and what scrutiny exists only occurs after the grant has been awarded. This gives considerably more power to the Secretary of State to implement policies announced in white and green papers.

Further updates will follow looking at the White and Green papers’ proposals and whether they require (or do not require) changes to the law, and how this might be done.

Core discussion areas following questions from our members at the Ask the Expert session:

Is there going to be a tradeoff period? Different parties are coming to the table and there’s a question on if Directors of Children’s Services should embrace the white paper or approach it more sceptically.

In terms of funding, local governments have lost their power to fund effectively and have been replaced by a central funding system. Overall, it’s a political issue between funding through the central government and legislation.

The white paper indicates that local authorities can create Multi Academy Trusts (MATs) where there are not enough strong MATs in the area to take on schools. Do you think the DfE are looking to local authorities only as a backup to pick up those schools that are ‘unwanted’!

Yes and no. If you look at Hall, for example, there has been a dramatic decrease in the number of schools. The white paper aims to limit the proportion of schools. There’s nothing clear in the white paper that requires academisation.

Do you have any thoughts on how those additional powers to direct academies to admit pupils might work in practice?

The white paper says that local authorities can adjudicate if they don’t wish to comply with the academisation requirements. Academisation may require doubling staff, employing retirees on a daily rate, and education officers that can be trained in a couple of weeks.

When do you think we will get the actual detail (specifics) behind the white paper from DfE?

There are issues like home education and attendance that may be legislated on. Sir John Coles was a civil servant who said in his article in Schools Week that the Education Act of 2023 may give us all the answers. It would be surprising if there is not a bill enacted by the beginning of June.

What are going to be the best mechanisms for local authorities to share evolving knowledge and practice about how to establish local authority-led MATs, so we don’t all reinvent wheels at the same time?

There are two LGIU member authorities that sponsor academies. Ultimately, information exchange is very important and given the technology we have available to do that, it’s extremely accessible and valuable.

Will we have to set up school companies to enable local authorities to establish their own MATs

There are restrictions on the nature of companies. By a government decision, companies can not be local-authority-influenced. If they invest more than 20% in a particular company, that company is classified as local authority-influenced and cannot sponsor an academy trust.

School improvement grants have been reduced and removed. When are we going to see private companies established to benefit local academy trusts?

The SFA had 12 regional offices at one point but they have been reallocated into these new 9 regions. For an incoming government that might believe in regional democracy, they are setting them up to be something that could easily be converted into a local regional democracy or boards.

You can use your council tax money to do what you like. But there’s no problem with local authorities running their own education companies. Two participants mentioned that  they have transferred their local authority staff to a local authority-maintained school company. Another said that while they trade their school improvement services, it is still a part of the council.

Further opportunities to ask questions

Please feel free to direct any questions to John at john.fowler@lgiu.org and he would be happy to discuss the issue further. And we look forward to hosting further events on this topic and others. Get in touch at info@lgiu.org to let us know what you’d like us to cover.

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