FORCED ACADEMY CONVERSIONS BRIEFING DECEMBER 2011
INTRODUCTION This Briefing paper is intended to advise on the legal position around forced academy status for schools and what action they might be taken in response to threats to force schools to become academies. The Government has stepped up its academy programme significantly. It initially presented academy legislation as ‘permissible’, providing academy status as an ‘option’ open to school governing bodies that chose to exercise it. However, it is now embarking on a programme of forcing academy status on so-called ‘underperforming’ schools. Potentially, hundreds of schools that have not opted to convert could now be forced to become academies run by an external sponsor regardless of the wishes of the school community. This represents a massive attack on state comprehensive education and potentially to members’ terms and conditions of employment. All NUT members need to be aware of the threat posed to their schools. THE LEGAL POSITION Schools ‘Eligible for Intervention’ The Secretary of State for Education now has a power to force a maintained school to become an academy. This power arises in one of three circumstances. The school has received a warning notice from its local authority concerning education standards, health and safety or a breakdown in discipline and the school has failed to comply with the warning notice to the satisfaction of the authority. The school requires ‘significant improvement’ following an inspection by Ofsted. The school requires ‘special measures’ following an inspection by Ofsted. It is an objective fact whether or not a school falls into one of these three categories. A school in one of the above categories is (in legal language) ‘eligible for intervention’. If none of the above three specific circumstances applies to the school, then the Secretary of State cannot force the school to convert into an academy. Where a School Receives a ‘Warning Notice’ A performance standards and safety warning notice may be given by a local authority in one of three circumstances. These are where: 1.
the standards of performance of pupils at the school are deemed unacceptably low and likely to remain so unless the authority exercise their powers; or 1
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there has been a serious breakdown in the way the school is managed or governed which is prejudicing, or likely to prejudice, such standards of performance; or
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the safety of pupils or staff at the school is threatened (whether by a breakdown of discipline or otherwise).
The Education Act 2011, which gained Royal Assent in November 2011, has increased the powers of the Secretary of State to tell the local authority what to do. Where a local authority has been directed to consider giving a performance standards and safety warning notice and has decided not to do so, a new power means that the Secretary of State may direct the authority to give a warning notice in specified terms. Failure to Comply with a Warning Notice Where a warning notice has been given, whether following a direction or not, failure to comply with it would result in the school becoming eligible for intervention. The warning notice will inform the governing body of their right to make representations to Ofsted against the giving of the warning notice. Ofsted, as an independent body, may confirm the warning notice or otherwise. What Constitutes Low Performance? The definition of what constitutes low standards of performance is where standards are low by reference to any one or more of the following: 1.
the standards that the pupils might in all the circumstances reasonably be expected to attain (i.e., below floor standards);
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where relevant, the standards previously attained by them; or
3.
the standards attained by pupils at comparable schools.
The Government has stated that in cases where a school has a history of performing below the floor standards, ‘conversion to an academy with a strong sponsor will be the normal route to secure improvement.’ Schools ‘Below Floor Standards’ The new floor standards for Key Stage 2 and Key Stage 4 were set out in the Government’s 2010 white paper, The Importance of Teaching. They set a higher absolute level of attainment below which no schools’ results should fall and there are additional requirements in respect of pupil progression. Primary Floor Standards A primary school would be seen as ‘underperforming’ if its Key Stage 2 results were: fewer than 60 per cent of pupils at the end of KS2 achieve level 4 or above in English and maths; and
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below average (national median) percentage of pupils at the end of KS2 make expected progress in English; and below average (national median) percentage of pupils at the end of KS2 make expected progress in maths. A school must miss all three measures to be below the floor standard. Secondary Floor Standards A secondary school would be seen as ‘underperforming’ if its Key Stage 4 results were: less than 35 per cent of pupils at the end of Key Stage 4 (KS4) achieving five or more GCSEs A*-C (or equivalents) including English and maths GCSE; and below average percentage of pupils at the end of KS4 making expected progress in English; and below average percentage of pupils at the end of KS4 making expected progress in maths. Again, a school must miss all three measures to be below the floor standard. What Powers Could Be Used Against a School That is ‘Eligible for Intervention’? If the school is eligible for intervention it can be subject to forced academy conversion. It will probably be the subject of pressure from the Department for Education and perhaps also from its own local authority to convert ‘voluntarily’. This would involve the governing body making an application to convert to the Secretary of State under the Academies Act 2010 section 4(1) (a). However, if a school governing body resisted this pressure then the procedure is not entirely clear. However, both local authorities and the Secretary of State have powers which could be used in this situation. The local authority may exercise its powers to: require the governing body to enter into arrangements; appoint additional governors; appoint an Interim Executive Board (IEB) to replace the governing body; or suspend the delegated authority for the school’s budget. The Secretary of State may exercise his powers to: make an academy order; appoint additional governors; or appoint an IEB to replace the governing body.
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Academy Order The Secretary of State could make an Academy Order, based on his power under the Academy Act 2010. There would still be a requirement for consultation but under new powers in the Education Act 2011, this could be carried out by either the governing body or the proposed new academy sponsor. The Secretary of State would then ‘take into account’ the outcome of the consultation and confirm the conversion date when the school would become an academy. So the steps would be: 1.
school becomes eligible for intervention;
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Secretary of State makes Academy Order (perhaps with a pre-set date for conversion say two to three months ahead);
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consultation takes place carried out either by the school’s governing body or by the proposed new academy proprietor;
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the Secretary of State considers the outcome of the consultation and confirms the Academy Order and the conversion date;
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the Secretary of State enters into the ‘academy arrangements’, the funding agreements etc, with the academy proprietor;
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on the set conversion date the school converts to an academy.
Additional Governors or an IEB An alternative approach might see either the local authority or the Secretary of State using their powers to appoint additional governors or to replace the entire governing body with an IEB. By doing so they could either ensure that a majority of the governors or the new IEB would co-operate in the academy conversion process. CAMPAIGNING AGAINST A FORCED CONVERSION Gaining the Support of the Staff No campaign against a forced conversion will be successful unless the staff team is willing to support a campaign of opposition. School representatives should call a joint union meeting of the whole school staff, at an appropriate time to facilitate attendance, and pass the NUT model resolution (or a similar resolution) opposing the forced conversion of the school to academy status. Send this to the governors and ask them to pass a similar resolution. Of course, if there is not already a school representative then one should be elected as soon as possible. All members should be encouraged to participate in any campaign in whatever way they can, so that they feel involved and are having a say in the future of their school and careers. The more people involved in any campaign, the more effective it is likely to be.
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Any non-members should be asked to join the union at this crucial time. To run an effective campaign, and to continue to have a say in workplace issues no matter what the result of the campaign against forced conversion, a strong and active union group is a vital necessity in making teachers voices heard. The model resolution and a wide range of other campaigning materials are available in the NUT’s Toolkit, Defending State Education which is available at www.nut.org.uk/academies. Gaining the Support of the Governors and Parents The NUT representative should, after a members’ meeting, ask the Governing body to pass the model resolution for governors available in the Toolkit (or a similar resolution). Union representatives should also sit down and plan a joint campaign to defend the school with school governors if they are so willing. If possible, an initial first step could be for the governors and unions to call a meeting of the parents’ group and explain the situation and the need to build the strongest possible campaign to support the school. If successful in arranging a parents’ meeting, the NUT representative should have in mind what they would like parents to do to assist the campaign. The use of a petition, for example, is an easy and effective tool to both getting people active and spreading a message. Also, it would be useful to have some provisional next steps in place so that the campaign can more easily build up a head of steam. However, parental support cannot also be guaranteed, so a contingency plan needs to be in place for this scenario and other points of leverage considered. Gaining the Support of the Local Authority The local authority may or may not be arguing the case of the school and the educational reasons why the forced academy conversion is not appropriate or necessary to deal with its particular situation. This is an opportunity for the NUT and the wider school community, including parents, governors and other local schools to put pressure on the local authority to fully support the school and argue for alternatives to a forced academy. These might include, for example, better use of the local authority school improvement services, partnership with strong local schools and/or becoming part of a federation. A great deal will depend on the local authority. Even though the Secretary of State has strong legal powers in respect of a school ‘eligible for intervention’ (including academy conversion), the authority does not have to agree with this. It can argue that the measures it is taking to deal with any problems are proving effective. A key concern is that local authorities will simply give up on their ‘eligible for intervention’ schools. The challenge for the NUT will be applying sufficient pressure to ensure that this does not happen.
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Using the Consultation Process A consultation will be required, carried out by either the governing body or by the proposed new academy proprietor. Either should ‘take into account’ the views of those consulted and make representations to the Secretary of State based on these. Clearly where the school community opposes a forced conversion it would be preferable for the consultation to be carried out by the governing body which is more likely than the proposed sponsor to ensure that the fullest and fairest consultation takes place. In reporting the outcome of the consultation to the Secretary of State, governors, also have the opportunity to make their own arguments as to why the forced conversion should not go ahead. This is an opportunity for the NUT and the wider school community to make clear the strength of feeling locally against a forced academy conversion, to develop alliances and raise the issue in the local media. However, it should be noted that the Secretary of State can make the Academy Order before the consultation has taken place. Campaigners need to be very aware of this. Appointment of Additional Governors or an IEB Whilst both the local authority and the Secretary of State have legal powers to appoint additional governors or an IEB this is not straightforward. In the past it has been found difficult to find people locally who are willing to sit on the governing body of a school that has been categorised as ‘failing’. This could be an opportunity to raise the issue in the local community and seek assurances from those who might be approached to become additional governors or part of an IEB that they will refuse to do so whilst the threat of a forced academy is hanging over the school. There are important issues of democratic accountability at stake and these should be widely aired in the community and local media. Industrial Dispute and Industrial Action As with all academy conversions, where a forced conversion takes place there will be a change of employer. Industrial action may be an appropriate step in the fight against forced conversion. There are very significant legal complexities relating to industrial action and ballots for such action. If members are keen to ballot for action the school representative or division secretary should seek immediate advice from their regional office before any decision is taken. For more detail see the www.nut.org.uk/academies.
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Legal Challenge There is a well established principle that the decisions of public bodies, such as the Secretary of State for Education, can be challenged by way of judicial review to the High Court. The best party to make a judicial review challenge would be the local authority on behalf of any of its maintained schools threatened with forced academy conversion. The next best party would be the school itself. Members of staff and in particular the senior management team at the school would have an interest in not being unfairly labelled as being part of the leadership of a ‘failing’ school. Judicial review cases focus on procedural matters. These challenges will rely on an argument that the decision being challenged is illegal, irrational or unreasonable. -
Illegal - Provided that the school is in fact in one of the eligibility grounds it would be very difficult to challenge on the grounds of illegality. If, say the school had an outstanding appeal against an Ofsted determination that might be an argument although it is possible that the determination would stand unless and until any appeal is successful.
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Irrational - this means that no sensible decision maker would have come to the particular decision they made – it is a rare ground in practice.
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Unreasonable - in a judicial review context, ‘unreasonable’ has a much more limited legal meaning than the usual understanding of the word. It means that the decision maker, here the Secretary of State, took into account matters that he should not have taken into account, or alternatively failed to take into account matters which he should have taken into account. The more that the school is borderline, and the problems are recent, and the improvement measures required by the local authority and Ofsted are having an effect, then the more likely that ‘reasonableness’ arguments may have some success. Given that the underlying purpose of the academies legislation is claimed to be to secure improved school performance, it might be argued that imposing such a substantial, institutional change on the school is a distraction and unnecessary.
SCHOOLS IN TARGETED LOCAL AUTHORITIES In addition to the situations described above which apply only to those schools ‘eligible for intervention’, i.e., in one of the three categories described, the Department for Education appears to have targeted certain education authorities and is putting pressure on so-called ‘poorly performing’ schools in those authorities to become academies. The Department for Education appears to be using two criteria to determine these socalled poorly performing schools. These go well beyond the eligibility criteria for intervention outlined above. They are: Group 1: Schools that did not meet the floor standard in any of the past five years;
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Group 2: Schools that were below the floor standard in 2010 (or 2009 if they boycotted SATs) and two or three of the previous four years (three or four years altogether). One of the concerns is that the floor standard is now higher for both KS2 and KS4 and the Department for Education appear to be applying the higher standard retrospectively to previous years when the floor standards were lower. In principle, it is likely that some form of test or threshold whereby the Secretary of State, in negotiation with local authorities, decides which schools need particular assistance is quite lawful. However, the test should in itself be reasonable and should be applied at least reasonably consistently, across different local authorities. It is not at all clear if the above Group 1 and Group 2 approach is reasonable. This approach certainly should not be ‘accepted’ in any way and may be subject to challenge. However, there should not be any blurring of the line. The Secretary of State can only force schools to become academies if they are eligible for intervention, whether or not they fall into any floor standard tests. It is not lost on school communities that while a supposed attraction of academies is that they should be free from the meddling of politicians, the Secretary of State, in London, is obtaining for himself a power to impose his political will on schools in a way that goes counter to the principle of delegated management of schools by their governing body which has been an accepted part of the educational scene since the late 1980s.
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