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Forced academisation of schools - is resistance futile?

School gate iStock 000003257894XSmall 146x219What are the circumstances which lead to a school being forced to become an academy, and is there anything that can be done to stop it happening? Katie Michelon provides an overview of the forced academisation process, and explains the options available to schools, parents and local authorities when faced with the possibility of an Academy Order.

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In what circumstances can a school be forced into academisation?

A school can be forced to become an academy if it is ‘eligible for intervention’. This is a legal term which is defined in section 59 of the Education and Inspections Act 2006 (EIA 2006) and provides for a school becoming eligible for intervention in the following circumstances:

  • following receipt of and non-compliance with a performance standards and safety warning notice (EIA 2006, s 60)
  • following receipt of and non-compliance with a teachers’ pay and conditions warning notice (EIA 2006, s 60A)
  • by virtue of being a coasting school (EIA 2006, s 60B)
  • following the school being graded inadequate, whether requiring significant improvement (EIA 2006, s 61) or requiring special measures (EIA 2006, s 62) by Ofsted

Where a school is eligible for intervention due to either type of warning notice or because it is coasting, the Secretary of State may decide to issue an Academy Order in accordance with s 4(1)(b) of the Academies Act 2010 (AcA 2010), but he is not compelled to do so. In contrast, where a school is eligible for intervention due to it being graded as inadequate by Ofsted, the Secretary of State has a statutory duty under AcA 2010, s 4(A1) to make an Academy Order in respect of that school.

Where a school is not eligible for intervention, the governing body may choose to apply to become an academy.

What remedies (if any) does a school governing body have to resist the decision?

There is no specific process to contest forced academisation and usually the only remedy available will be challenging the Secretary of State’s decision-making by way of a claim for judicial review.

The ability to challenge the decision through a judicial review claim is somewhat dependent upon the legal basis for the Academy Order being made. Where the Secretary of State has taken a decision to make an Academy Order under AcA 2010, s 4(1)(b), there may be scope to challenge the reasonableness and fairness of that decision or the associated process in accordance with public law principles. Where, however, the Academy Order is made under AcA 2010, s 4(A1), technically the Secretary of State is merely complying with a statutory duty in making the Academy Order and there is not an obvious ‘decision’ to challenge.

In either case, there is also a subsequent decision taken by the Secretary of State to enter into the funding agreement, as the Academy Order itself is only permissive. However, this decision is often taken very close to the conversion date so there are obvious practical difficulties with challenging that decision before the governing body is dissolved on the conversion date.

There may be other decisions that are susceptible to challenge as part of the forced academisation process and could potentially bring a halt to the conversion—for example, the decision to select a particular sponsor or the decision not to revoke an Academy Order—but this is likely to depend on the facts of the particular case.

It should also be noted that where a school is subject to an Academy Order made under AcA 2010, s 4(1)(b) or AcA 2010, s 4(A1), there is a statutory duty on the governing body to take all reasonable steps to facilitate the conversion of the school.

What consideration is given to the parent voice in the process?

Where a school is being forced to academise (whether on a discretionary or mandatory basis), there is no statutory duty on the Secretary of State to seek or consider the views of parents. Where a school is the subject of a discretionary Academy Order under AcA 2010, s 4(1)(b), there may be more scope for arguing that the Secretary of State should take into account parental concerns, but otherwise the framework allows little room for parental voice.

Of course, that does not prevent parents from objecting, and we have seen cases where pressure from local stakeholders has contributed to the selected sponsor deciding to step away or has delayed the process. It also does not prevent parents, assuming they have the resources to do so, from bringing a judicial review claim to challenge some aspect of the forced academisation. In some cases—for example if the chosen sponsor is not compatible with the religious ethos of the school—such a claim may have prospects of success.

Who decides the academy trust provider, and what criteria are applied to the assessment process?

The Regional Schools Commissioner (RSC), on behalf of the Secretary of State, will ultimately decide which academy trust will sponsor the school. The RSC aims to match sponsors with schools in their area. They will typically create a shortlist of suitable sponsors by assessing performance (results and Ofsted grades), capacity to take on another academy, geography and any other relevant factors such as religious compatibility.

Do any local stakeholders, ie parents, community leaders, local authority, have any involvement in the appointment?

Ultimately, the decision as to which academy trust will sponsor the school is taken by the RSC. Having said that, it is not uncommon for there to be a dialogue about the identity of the sponsor, for a school to be presented with more than one potential sponsor option and have the opportunity to meet with them and ask questions. Even where a school is being forced to convert, it is usually recognised that the process is likely to be smoother and the outcome more successful if good relationships are established from the start.

In the case of faith and foundation schools, there is a statutory duty on the Secretary of State to consult the relevant religious body and trustees on the identity of the sponsor. For Church of England and Catholic schools, the Department for Education has agreed Memoranda of Understanding which govern the bodies work together to secure a suitable sponsor.

It should be noted that AcA 2010, s 5B requires both the governing body of the school and the local authority to take all reasonable steps to facilitate the conversion proceeding with the sponsor identified by the Secretary of State.

How frequent are forced academisations?

Given that any school which is graded inadequate by Ofsted is subject to a directive Academy Order, conversion without choice is common. Outside of this scenario however, forced academisation is now more unusual. The Department for Education’s most recent policy position is that it will not use coasting standards and will only take intervention steps, including through the use of an Academy Order, where a school is graded inadequate by Ofsted. 

It is also worth noting that we have seen the Secretary of State take decisions to revoke Academy Orders in accordance with its power to do so under AcA 2010. The majority of revocation decisions are taken when a school is able to bring itself out of a category prior to the conversion going ahead.

Katie Michelon is a senior associate at Browne Jacobson LLP. Interviewed by Rosie Johnson. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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