Tackling failing or 'coasting' schools

School building Stock 000007464497XSmall 146x219Rebecca Hazeldine sets out the key elements of the Government's proposed new approaching for addressing underperformance in schools.

The Government’s mission to drive up school standards by speeding up the process of improving failing schools and tackling underperformance in “coasting” schools is well underway.

The draft Education and Adoption Bill is currently making its way through Parliament. A consultation “Intervening in failing, underperforming and coasting schools” has been launched by the Department for Education (DfE) and is open until 18 December 2015; it seeks views on the new proposals for tackling underperformance and the definition of coasting school. As part of the consultation, the DfE has published a revised draft of the statutory guidance on “Schools Causing Concern” to take into account the proposed new powers upon which views are also being sought.

Under the proposals, local authorities (LAs) and governors will be actively required to take steps to convert schools to academies, whilst the Secretary of State’s (SoS) power to intervene directly will also be greatly extended. The new powers of the SoS will be exercised by Regional School Commissioners (RSCs) who will be expected to follow the DfE’s guidance in exercising those powers. The powers of LAs to intervene remain largely unchanged although there will be implications in the way in which these are used alongside the proposed new powers of the SoS.

The guidance sets out the roles and responsibilities of RSCs and LAs, and how they will work with others to ensure underperformance is challenged and schools are supported to improve. Given the increased powers of the SoS in the Bill, it will be interesting to see how RSCs and LAs work together in exercising their powers. There will be certain requirements for LAs and RSCs to notify each other when they intend to exercise their powers. In some cases the LA’s powers will be restricted where the RSC has already exercised their powers.

The Education and Inspection Act 2006 (EIA) will continue to be the main Act dealing with intervention in maintained schools. This Act only applies to LA maintained schools; Academies and Free Schools are not subject to this regime as they have a separate legal framework. However, RSCs will scrutinise academies’ performance and will require academies to take appropriate action or face termination of their funding agreement.  

To become eligible for intervention, a school must fall within one of the following categories. The first four categories are well established under the EIA but there are some proposed procedural amendments.

1. Performance Standards and safety warning notices (s60 EIA) – An LA and SoS (under the new provisions) may issue a warning notice. As is the case currently, such a warning notice can be given where standards of performance are unacceptably low; there has been serious breakdown in management or where the safety of pupils or staff is threatened (considerations to be taken into account are set out in the guidance). If an RSC has given a warning notice, the LA may no longer give one. Failure to comply with the warning notice within the specified time period will mean that school becomes eligible (the current 15-day fixed period has been removed in the Bill). The intervention powers must be used within a period of two months from the end of the compliance period. 

2. Teachers pay and conditions warning notices (s60A EIA) – As is the case now, only an LA can issue such a warning notice. The effect of a failure to comply is the same as for performance notices.   

3. Schools judged by Ofsted as requiring significant improvement (s61 EIA)

4. Schools judged by Ofsted as requiring special measures (s62 EIA)

5. New category of Coasting Schools (proposed s60B EIA) – A coasting school will be one where performance data shows that for the past three years they have failed to ensure pupils have reached their potential. The precise definition of a coasting school will be set out in more detail in regulations. An illustrative draft has been published.

A school will be notified if they are coasting by an RSC following publication of the final performance results for that year. Once they have received such a notification, they become eligible. Prior to notification, RSCs may contact schools to start informal discussions providing an opportunity for all parties to work together to start developing plans for improvement.  

The RSC will have discretion to decide whether the school has a sufficient plan and sufficient capacity to improve on its own, whether it needs additional support and challenge or whether it will be necessary to intervene (using any of the powers explained below). Any views or evidence from the LA will also be taken into account or the RSC may wish to work with the LA if they are already providing support. The guidance sets out the process and various factors which can be taken into account. 

Once a school becomes eligible, there are a number of powers open to LAs and SoS (to be exercised by the RCS) to support the school. Many powers are already available to LAs. Note, only some of these powers are available where the school is eligible under s60A. The new Bill greatly increases the powers available to the SoS (only some of which are currently available to the SoS).

  • Entering into arrangements (s63 and 66A EIA) – Notice can be given to a school requiring them to take a specified action including obtaining advisory support, collaborating with another school or educational body or joining a federation. This power will be extended to the SoS under the new proposals.
  • Appointing additional governors or an Interim Executive Board (“IEB”) (s64, 65, 67, 69 and 70C EIA) – both the LA and SoS will continue to have power to appoint additional governors or an IEB (subject to the LA obtaining SoS consent in the case of an IEB). The new proposals will enable the SoS to direct the LA in relation to the size and composition of the IEB. The SoS would also have power to take over responsibility of an IEB which an LA has put in place. The guidance provides details as to the membership and roles of an IEB.
  • Suspending their right to a delegated budget (s66 EIA) – the LA will continue to have power to suspend a schools delegated budget.
  • Directing a school closure (s68 EIA) – the SoS can direct an LA to cease to maintain a school, usually in cases where there is no prospect of the school making sufficient improvements.
  • Making an academy order (s4 and 5 Academies Act 2010) – Where a school has been judged inadequate (i.e. requiring significant improvement or special measures), action is needed urgently and it is intended that a new duty be placed on the SoS to make an academy order. In other cases, the SoS will have discretion as to whether to make an academy order. If they do, the proposed provisions will place a duty on LAs and the governing body to work towards the conversion and take all reasonable steps. The RSC will be able to direct them to take specified steps if required. There will be no requirement for the school to carry out any consultation nor will the RSC be required to consult except in the case of voluntary or foundation schools.  

Before exercising these powers, there are some requirements for consultation and/notification with various parties including the governing body, foundation trust or religious body.

While the timing for introduction of these new and strengthened powers is dependent on the passing of the Bill, the DfE expects powers regarding schools eligible for intervention to take effect from the summer term 2016 at the earliest. Schools identified as coasting will only be notified of such following publication of the performance tables reflecting final 2016 results; no school can be classed as coasting before then. Final guidance will be published in good time to take effect at same time.

Rebecca Hazeldine is a Solicitor in the Public Services Group at Geldards LLP. She can be contacted on 020 7921 3993 or This email address is being protected from spambots. You need JavaScript enabled to view it..