The Education and Adoption Act 2016 (Commencement, Transitional Provisions and Savings) Regulations 2016 (Statutory Instrument No. 466/2016) was published on Monday, 4 April 2016 although made on Tuesday, 29 March. This is the legal instrument to commence the Education and Adoption Act, and commenced three of the Act’s four important Conservative Party manifesto commitments on education and children’s services on Monday, 18 April 2016.
There was no press release or Ministerial speech. The DfE published on Thursday, 24 March, just before the Easter break, revised statutory guidance for local authorities Schools Causing Concern: Intervening in failing, underperforming and coasting schools (PDF document). The LGiU/CSN briefing is here (£).
The guidance announces that it will be “effective from 18 April 2016 when the majority of provisions in the Education and Adoption Act 2016 commence”. The Statutory Instrument provides retrospectively the legal basis for the guidance’s commencement. The only section not commenced is section 1 on coasting schools. Transitional provisions apply to warning notices already issued by local authorities under ss. 2 and 3, and the forced Academisation provision under s.7 will not apply where the school governing body or local authority has published a proposal to close the school.
The Education and Adoption Bill had its last Parliamentary stage on 23 February. The DfE press release announcing this stage did not include commencement information. Royal Assent was given on 16 March. No explanation was given for this three-week delay. Unless an Act of Parliament specifies a commencement date (which the Education and Adoption Act does not), current (July 2015) Cabinet Office rules (PDF document) stipulate that “no substantive provision of an Act should be brought into operation earlier than two months after Royal Assent … In exceptional circumstances, approval for early commencement should be sought from the Law Officers and the Chair of PBL Committee” (paragraph 3.41). The PBL Committee is the Parliamentary Business and Legislation Committee, chaired by the Leader of the Commons. Was approval sought, and what are these exceptional circumstances? If it was urgent, Royal Assent could have been sought on 23 February.
One might have expected the DfE, if it complied with Cabinet Office procedures, not to have commenced the legislation until 16 May. However, following censure by a House of Lords inquiry 10 years ago, the DfE has tended to give a whole term’s notice. This is why four other DfE statutory instruments were published between 31 March and 4 April for commencement on 1 September 2016.
It might not matter much if it were not for the “forced Academisation” provisions in section 7 of the new Act. The Secretary of State must make an Academy Order to convert an LA maintained school into an Academy when an Ofsted inspection finds the school requires “special measures” or has “serious weaknesses” (require significant improvement is the term in the 2005 Education Act) following an Ofsted “Inadequate” judgement.
There are 179 LA maintained schools on the latest Ofsted Management Information on school inspection outcomes (showing reports published on or before 29 February 2016, dated 17 March 2016) which require “special measures” or have “serious weaknesses”, excluding LA nursery schools, which can’t be academised. Of these 179, 54 appear in the ‘Sponsored pipeline’ worksheet of the March 2016 DfE ‘Open academies and academy projects awaiting approval’ workbook. The publication is dated 14 March showing information correct on 1 March 2016 (information in ‘Sponsored pipeline’ worksheet is known not to be up to date, and admittedly DfE updated the Open Academies workbook on 12 April). None were in the converter pipeline.
Each month roughly 10 LA maintained schools are added to those schools which require special measures or have serious weaknesses, and 10 leave, five to academy status and five to remain as maintained schools following a section 5 inspection which finds the school Outstanding, Good, or Requires Improvement.
However, from 18 April, such schools cannot remain as local authority maintained even if a section 5 Ofsted report finds the school is now Outstanding, Good or Requires Improvement.
On past performance, there will be 5 to 20 schools which are about to have a clean bill of health but for want of an Ofsted inspection. The effect is to plunge these schools into having their current local governance arrangements disrupted while “the RSC (Regional Schools Commissioner) … take[s] responsibility” for finding an Academy sponsor. If Ofsted and these schools were given the promised two months’ notice, or even a whole term’s notice, then the schools would have been able to determine their future in an orderly manner. As it happens, some schools might find a signed Academy Order in the post on the first day of the Summer Term on 18 April.
It has come to the LGiU’s attention that in one local authority the RSC has not informed the authority of its plans about a school with an extant inadequate Ofsted judgement. Local authorities may wish to check relevant schools are aware of this change in the law.
The provision which removes a school from an extant inadequate Ofsted judgement – s. 13 (Duties of Chief Inspector where a school causes or has caused concern) Education Act 2005 – is not clear when it happens. It is likely that it happens when Ofsted publishes the new s.5 report on its website which is three to four weeks after an inspection has been completed. Schools are informed of the draft judgement when inspectors finish the inspection. It is possible that there are one or two schools which were inspected at the end of the Spring term, find that the inadequate judgement has been lifted, but will still have an Academy Order made because the report has not been published by 18 April.
Although there was consultation on the new DfE guidance, it contains the usual hallmark of a rushed job. A few additional comments follow.
Page 8 (of the DfE Guidance) on the LA’s responsibilities when a school is found to need special measures or have serious weaknesses under the Education Act 2005. The guidance does not mention that LAs remain under a duty under s.15 (Measures to be taken by the local authority) to produce an action plan to improve the school following consultation with parents. The fact that the duty is not referred to in guidance does not revoke the legislation, but what is the point when the school will be forcibly academised?
Page 9 on the RSC duty to make an Academy Order for a school which has been judged inadequate by Ofsted. For the sake of clarity which is not in the guidance, this duty does not apply if there has been a subsequent section 5 inspection which has found the school not inadequate, and the judgement has been published. If the revised judgement has not been published, the RSC will be under a duty to make the Academy Order. Although the duty will be in place on Monday, 18 April, it is not known whether RSCs will sign the Orders on 18 April and then inform their Head Teacher Boards (HTB), or wait until their HTB next meets.
Page 19 does not mention that the issuing of Performance Standards and Safety Warning Notices has changed and as a consequence the scope of what a warning notice can contain. The “initial period”, set at 15 working days, is removed. This is replaced with a “compliance period” within which the school governing body must comply with the requirements of the warning notice. The length of the compliance period is set by the issuer of the warning notice which consequently makes the scope greater of what can be expected of the school, for example over a 12-month period, than was possible under the three-week period under the old legislation. The new legislation also removes the appeal to Ofsted. As before, non-compliance with a warning notice, in the opinion of the issuer, makes the school eligible for intervention.
Chapter 5, page 27 onwards, does not mention the two intervention powers which local authorities can exercise under the Schools Standards and Framework Act 1998 in addition to the four under the Education and Inspections Act 2006. These powers, s.51 (Suspension of financial delegation for mismanagement etc) and s.62 (LA’s reserve powers to prevent breakdown of discipline) can be used at any time that the school remains local authority maintained.
Page 36, on the RSC’s power to revoke an Academy Order under s.5D, Academies Act 2010, as inserted by s.12 Education and Adoption Act 2016, was not fully examined while the Bill was before Parliament. However, the Minister of State, Nick Gibb, said, Hansard col 319, 14 July 2016, Public Bill Committee, that
“There may be an instance where a school has gone from “outstanding” to “inadequate” due to a specific safeguarding concern but that issue has been quickly resolved. In such a case, the Secretary of State may not view academisation as in the interests of the school or its pupils. She would be able to revoke the automatic academy order using the power in Clause 12.”
Page 37, on the Secretary of State’s power to direct the closure of a maintained school, has caused some surprise because of statement about the local authority meeting the costs of closing the school such as terminating staff contracts. The provision first appeared as s.19, School Standards and Framework Act 1998, and helpful Ministerial commitments were given at the time. Should a local authority be faced with such a direction they may wish to contact the author of this blog. The financial implications of the RSC direction making powers under the inserted s. 5C Academies Act 2010 have the potential to cause significant detriment to a local authority as they will state how a local authority has to exercise the duty to facilitate a forced academisation (see page 36 of the Guidance).
In conclusion, up to about 10 years ago, the central Government education department would publish a detailed implementation plan following a new Act of Parliament. The rushed implementation, and absence of a detailed plan leaves, unanswered many questions that local authorities will have about the new legislation, and not in the statutory guidance. Some questions have been raised above but others remain.
The DfE has not yet published the promised guidance on which duties and powers the Secretary of State has delegated to RSCs and any terms or restrictions on those duties and powers. It was promised for early April 2016: Lord Nash promised on 14 April “a high-level outline of the regional schools decision-making framework; each regional schools commissioner’s regional vision; a description of the national schools commissioner’s role; and the terms of reference for head teacher boards” Lords Hansard, 14 April 2016, col 352. Hopefully, greater clarity will be on its way.
What will happen to the current Ofsted programme of inspections of Local Authority arrangement for School Improvement (LASI)? There hardly seems any point in inspecting what the local authority does when another arm of government is telling it not to bother and withdrawing the grant from September 2017. However, local authorities are still being inspected. A report on Walsall was published on 13 April.
The central government education department was once noted for its ability to manage new legislation. This stage of the implementation of the Education and Adoption Act is not satisfactory. The recent schools white paper Educational Excellence Everywhere proposes a much bigger role for the DfE over individual schools and the school system. The DfE must improve on its current performance for the sake of the children in our schools, their teachers, other staff and parents.