This is Section 16 of the Guide to the Law, as published May 2012.
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KEY POINTS
This section relates to “Schools causing concern” – schools which are “eligible for intervention” in accordance with Part 4 of the Education and Inspections Act 2006, as amended (“the 2006 Act2) .These are maintained schools that are judged by Ofsted to require special measures or significant improvement (also known as “notice to improve”) or which have not complied with a local authority (LA) warning notice within a specified period ( referred to as the “compliance period”) and the LA have given written notice that they propose to exercise their intervention powers under the 2006 Act .
More details can be found in the Department for Education (DfE) Statutory Guidance on Schools Causing Concern 2011. LAs must have regard to the 2011 guidance.
This section and the 2011 guidance reflect the legislative position prior to amendments made to the 2006 Act by the Education Act 2011. The statutory guidance is due to be updated in Spring 2012 to reflect those amendments.
WARNING NOTICES
1. LAs should always try to work constructively with schools causing concern, but where there is insufficient improvement in a school’s performance and it may be necessary to use intervention powers, the LA may give the governing body a warning notice, where the LA is satisfied that:
- · the standards of performance of pupils at the school are unacceptably low, and are likely to remain so unless the authority exercises its powers ;
- · there has been a serious breakdown in the way that the school is managed or governed which is prejudicing, or likely to prejudice, such standards of performance; or
- · the safety of pupils or staff at the school is threatened (by a breakdown of discipline or otherwise).
2. Standards of performance may be judged to be unacceptably low (the first bullet above) in relation to absolute performance; but also in cases where performance is low by comparison with pupils’ past attainment, or with the standards attained by similar pupils at comparable schools.
3. The Statutory Guidance on Schools Causing Concern sets out in greater detail examples of the circumstances in which a warning notice may be given.
4. A warning notice is a written notice given by an LA to a governing body. It must set out the grounds of concern, including the evidence on which these conclusions are based. The notice must also set out what action the governing body is required to take to remedy the matters within 15 working days from the date of the notice, and set out the action the LA is minded to take if the governing body fails to take the required action. It must also inform the governing body that it may make representations to Ofsted against the warning notice.
The governing body has 15 working days following the day that the warning notice is given to comply with the notice or make written representations to Ofsted.
5. Following amendments to the 2006 Act by the Education Act, 2011 the Secretary of State can now, not only direct the local authority to consider giving a warning notice to the governing body of a school in specified terms, where the SoS has concerns about the standards of performance at the school and/or where there has been a serious breakdown in the way the school is managed or governed which is or is likely to prejudice the standards of performance and/or the safety or staff or pupils is threatened, but also has the power to direct the LA to give a warning notice to a school in those specified terms, where the LA has considered doing so and decided not to.
The Local Authority have 10 working days in which to consider giving the warning notice in specified terms and must inform the SoS of their decision providing reasons. Should the local authority decide to give the warning notice they must do so in 5 working days. Where the LA have decided not to do so, the SoS will consider the LA’s reasons and may then direct the LA to give the warning notice, in those specified terms. The LA has 5 working days to comply with that direction. Where a governing body has been given such a notice it still has 15 working days in which to comply with the actions set out in the notice or make representations to Ofsted in that time.
6. If representations are made to Ofsted, they should explain the reasons for the representations, including, where relevant, why the governors disagree with the grounds for giving the warning notice, or why they consider the action proposed to be disproportionate. Ofsted may request additional evidence from either the school or the LA in order to arrive at a judgement. If there is insufficient evidence to reach a decision, Ofsted may inspect the school.
7. If Ofsted does not confirm the warning notice it should be withdrawn. If Ofsted confirms the warning notice, the governing body will receive notice in writing of this and will have 15 working days from that day to comply with the warning notice. The school will be eligible for intervention provided that the LA have given notice in writing that they propose to exercise their powers under the 2006 Act.
8. If a governing body does not make representations to Ofsted or if the warning notice is confirmed, the governing body must comply with the warning notice to the LA’s satisfaction. Even when the warning notice has been given in the terms specified by the SoS, it is still the local authority who decides if compliance has been secured.
9. If, following the 15 working day period, the LA is not satisfied that the warning notice has been complied with, and the LA have given reasonable notice in writing that they propose to exercise their powers under the 2006 Act, the school will be “eligible for intervention” and the LA (or the Secretary of State) may use their intervention powers (see below).What is considered reasonable will depend on the facts of an individual case, but in exceptional circumstances may be as little as one day where urgent action is required. Most of the LA’s intervention powers must be exercised within two months of a school becoming eligible for intervention as a result of non compliance with a warning notice. This includes the power to require the GB to enter into arrangements with a view to improving the performance of the school; the power to suspend the governing body’s right to a delegated budget; and the power to appoint additional governors. The only LA intervention power that does not have to be exercised within two months of the school becoming eligible for intervention as a result of non compliance with a warning notice is the power to constitute the governing body as with an Interim Executive Board (IEB).
Following provisions in the Academies Act 2010 the SoS also has powers to make an Academy order in respect of a school which is eligible for intervention under Part 4 of the 2006 Act. – see below.
Action required for maintained schools in Ofsted Categories
10. The governing body, in consultation with the local authority, should start to consider what action to take immediately after the oral feedback that Significant Improvement or Special Measures are required.
11. All schools should have a single, integrated development plan. There is no statutory requirement for the school to produce a specific action plan to respond to the judgement of significant improvement or special measures. The school should instead develop its existing school development or improvement plan to set out clearly the actions that will be taken to address the specific issues highlighted by the inspection, and how these will be monitored.
“The case has become urgent”
12. If a school in special measures is failing to make progress, the Secretary of State may write to the LA to declare that the case has become urgent. The usual trigger for this will be if the school is found to be making inadequate progress at its second monitoring visit, although this will not always be the case. The LA must respond to this letter by reviewing the actions taken so far, considering more radical solutions to improve the school, and producing a revised statement of action.
INTERVENTION POWERS
13. LAs and the Secretary of State have intervention powers to tackle the problems of schools requiring special measures or significant improvement and those which have failed to comply with a warning notice to the satisfaction of the LA and where the LA have given written notice that they propose to exercise their intervention powers. In all these circumstances a school is “eligible for intervention”.
14. LAs may require a school which is eligible for intervention to:
- enter into a contract or other arrangement with another school, a further education body, a specified person or body or take steps to create or join a federation, with a view to improving the performance of the school – in these circumstances, the LA must consult the school governing body and ,where appropriate the appropriate diocesan authority or other appointing authority for foundation or voluntary schools;
- appoint additional governors to the governing body. The LA have powers to appoint as many additional governors as they see fit. If appropriate, the LA must consult, the appropriate diocesan authority or other appointing authority for foundation or voluntary schools. A voluntary aided school may also appoint additional governors where the LA have done so. The number will depend on the basis upon which it is eligible for intervention;
- suspend its right to a delegated budget;
- constitute the governing body, with the Secretary of State’s consent, with an IEB (see below).
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15. The Secretary of State also has powers to appoint additional governors if at any time a maintained school is eligible for intervention and may nominate one of those governors to be the chair of the governing body in place of the previous chair. In these cases, the LA may not exercise its intervention power to appoint additional governors or suspend the governing body’s right to a delegated budget. If a delegated budget has already been suspended, the governing body may ask the Secretary of State to have this suspension revoked.
16. The Secretary of State may constitute the governing body of a school as an IEB. (see below).
17. The Secretary of State may also give a direction to the LA that a school, which is eligible for intervention, (other than where it is eligible for intervention as a result of failing to comply with a warning notice given under section 60A) should be closed on a given date. He may consider using this power if it is unlikely that the LA will ensure rapid improvement and is unwilling to consider closure.
18. Under provisions set out in the Academies Act 2010 as amended by the Education Act, 2011, the SoS may also decide to make an Academy order. In the case of a foundation or voluntary schools, the SoS must consult the appropriate Diocesan authority or other appointing authority before making the Academy order. Should the SoS makes an Academy order he must send a copy of the Academy order to the same relevant Diocesan authority or other appointing authority, the head teacher of the school, the governing body and the local authority. Should the SoS think an Academy order is not required he must then inform the same relevant Diocesan authority or other appointing authority his reasons for not making one.
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19. In the case of voluntary aided schools, where the Secretary of State has exercised his power to appoint additional governors, any power to appoint foundation governors for the purpose of out-numbering the other governors is disapplied.
INTERIM EXECUTIVE BOARDS (IEB)
20. An IEB is the governing body of the school appointed for a temporary period with the specific task of ensuring school improvement. The principal duties of an IEB are to:
- take on the responsibilities of a normally constituted governing body (save for those matters relating to school closure as set out in paragraph 18 of Schedule 6 to the 2006 Act);
- conduct the school so as to secure a sound basis for improvement;
- promote high standards of education.
21. The IEB may determine its own procedure to carry out the duties of a governing body and make such arrangements as it wishes for its functions to be carried out by any other person.
22. The IEB has a right to a delegated budget. If the school’s budget has been withdrawn, the LA must restore the budget from the date when the IEB commences its work. If a notice has been given to the normally constituted governing body, specifying a date when it is proposed to withdraw the right to a delegated budget for financial mismanagement or any other reason, the notice will cease to have effect from the date of commencement of the IEB.
School closure
23. Unlike a normally constituted governing body, the IEB may only recommend to the LA or to the Secretary of State that the school should be closed under the normal statutory procedures. However, it cannot itself publish proposals for closure. If closure proposals are agreed and the LA decides or the Secretary of State directs the LA to close the school, the IEB must continue to hold office until the implementation date of the proposals when the LA ceases to maintain the school.
TRANSITION: SHADOW GOVERNING BODIES AND RESUMPTION OF AUTHORITY BY A NORMALLY CONSTITUTED GOVERNING BODY
24. The transition from an Interim Executive Board (IEB) to post-IEB governance (“the transfer date”) will be crucial to sustaining the school’s recovery, and must be carefully planned. The new permanent governance arrangements will not normally involve the previous governing body, and there may also be a substantial reduction in size.
25. If the date when the IEB will cease was not given in the notice of establishment, the local authority must give a second notice to the governing body specifying the date when the IEB will be discontinued. This notice should be copied to all members of the IEB, the Secretary of State and, in the case of foundation or voluntary schools, the diocesan or other appropriate appointing authority.
26. The IEB may have ended at a particular milestone – for example soon after a school has been removed from special measures. In such circumstances, when the school’s recovery is well-established but fragile, the executive function of the shadow governing body is particularly important.
27. There is no requirement to establish a shadow governing body but the local authority may decide the need for this on a case by case basis. The shadow governing body will work alongside the IEB for a minimum of six months before taking over full responsibility as the normally constituted governing body of the school. In some cases, it may be necessary for a shadow governing body to work alongside an IEB for longer than six months. A full academic year, for example, would allow the shadow governing body to experience a full year’s cycle in the school and see what has influenced decisions and planning.
28. Members of the shadow governing body should be allowed to attend IEB meetings as observers to help smooth the school’s return to normal governance arrangements.
29. Although the IEB may delegate specific functions to the shadow governing body during the interim period, the main purpose of this parallel running is to allow IEB members to coach the shadow governing body.
30. Where a local authority have not appointed a shadow governing body, they must ensure that a new instrument of government is made for the school and that on the transfer date the governing body of the school are constituted as a normally constituted governing body in accordance with that new instrument of government.
WHAT LEGISLATION DOES THIS REFER TO?
The Education and Inspections Act 2006: Sections 59–73, Schedules 6
