The Education and Adoption Act and the Rise of the Regional School Commissioners

9 Apr

I        The contents

On Tuesday, 23 February 2016 the Education and Adoption Bill 2015 completed its passage through Parliament. The Act

  • empowers the Secretary of State to convert every school judged ‘inadequate’ by Ofsted into a sponsored academy;
  • enables the Secretary of State to intervene in maintained schools considered to be underperforming, and constrains local authorities from doing so in some circumstances;
  • expands the legal definition of the ‘eligible for intervention’ category to include ‘coasting’ schools, and allows the Secretary of State to intervene through a range of measures including requiring the school to become a sponsored academy; and
  • enables intervention in academies on the basis that they are ‘coasting’.

When the Act was journeying through Parliament as a Bill, the definition of “coasting” was applied only to maintained schools but this was altered by the government following pressure from the House of Lords.

The details of how the Act’s provisions will be implemented will be set out in a new version of the Schools Causing Concern guidance. The DfE consulted on the drafts of both, this guidance and the proposed ‘coasting’ definition, in late 2015. The outcome is expected to be published in the near future.

In addition, the Act

  • gives power to the Secretary of State to issue directions, with time limits, to school governing bodies and local authorities to speed up academy conversions;
  • places a new duty on schools and local authorities in specified cases to take all reasonable steps to progress the conversion;
  • requires schools and local authorities in specified cases to work with identified sponsors towards ‘making academy arrangements’ with those sponsors;
  • removes the requirements for a consultation to be held where a school ‘eligible for intervention’ is being converted to a sponsored academy.

Government amendments tabled in the Lords and carried into law will require a new sponsor to communicate his/her plans for a school to parents.

Speaking in the Commons on 23 February 2016, Schools Minister Nick Gibb said that, although not precluding those who choose to consult on a planned academy conversion, the law would end the current “rigid approach that allowed vested interests to prevent sponsors from taking decisive action and to delay the process of transformation”.

The government is planning to use its powers of intervention through the eight Regional Schools Commissioners (RSCs). The initiative was taken as a practical response to establishing an intermediate cadre of “civil servants” between Whitehall and the growing number of academies.

II       Implications for Governing Bodies

If an LA maintained school is judged by Ofsted to be ‘inadequate’ it will become an academy because the new law will require the Education Secretary to make an academy order in such a case. The local authority and governing body will have to facilitate the conversion. The Education Secretary (via the Regional Schools Commissioner) may revoke an academy order if another potential approach to improvement is identified or if closure is deemed to be the best solution.

A new performance measure may leave a school open to academy conversion by the Education Secretary (through the RSC) if the school is deemed to be coasting.  Where a school meets the criteria for ‘coasting’ it will be for the RSC to determine whether it has a credible plan to improve or whether in her/his opinion intervention is required.  If it doesn’t, the RSC may decide

  • that a school needs additional support and challenge;
  • should be required to enter into specified arrangements;
  • that additional governors or an interim executive board (IEB) are needed; or
  • that the school should become a sponsored academy.

Academies can also be ‘coasting’ and these schools could be handed over to new sponsors. But importantly, academy trusts will have the power to challenge the decision.

The governing boards of foundation schools will have recourse to consultation if the government is seeking to convert them into academies.

The Secretary of State will have the power to issue directions to local authorities about the membership and terms of appointment of Interim Executive Boards (IEBs) set up to replace sacked governing bodies.

Eligible for intervention is a specific term which means that the DfE or the local authority has the power to intervene in the running of a school because of concerns about the way it is performing.

A school is ‘eligible for intervention’ where:

  1. the governing body has failed to comply with the terms of a warning notice (issued by the LA or the SoS/RSC);
  2. the school has been judged ‘inadequate’ by Ofsted; and/or
  3. the school’s performance falls under the ‘coasting’ definition.

And what precisely is a “coasting” school/academy?   The Secretary of State is on record as having stated that a secondary school/academy will deemed to be coasting if in 2014 and 2015 fewer than 60% of pupils achieved five good GCSEs or an above-average proportion of pupils failed to make acceptable progress. From 2016, the level will be set based on Progress 8 – the new accountability measure, which shows how much progress pupils make in a particular school between the end of primary school and their GCSEs.

At primary level, the definition will apply to those schools/academies which have seen fewer than 85% of children achieving an acceptable secondary-ready standard in reading, writing and maths over the course of three years, and who have seen insufficient pupil progress.

When a school is ‘eligible for intervention’, either the local authority or RSC may employ one or more of the following measures:

  1. suspend the right to a delegated budged (LA);
  2. appoint an Interim Executive Board (IEB) (RSC, or LA with RSC’s permission);
  3. appoint additional governors (RSC or LA);
  4. require the governing body to ‘enter into arrangements’ with the RSC or LA;
  5. direct the LA to close the school (RSC); and/or
  6. make an academy order (RSC)

In general, where the RSC intends to intervene in a school, her/his powers take precedence over those of the LA.

III     The report of the Education Select Committee

The Education Select Committee published its report on the RSCs on 13 January 2016.  Among other things, the Committee remarked that the RSCs were now part of an “increasingly complicated system of oversight, accountability and inspection”.  The Committee asked the government for a more fundamental reassessment of accountability and oversight for all schools and academies to provide coherence.  Schools and academies were increasingly being mired in the marshland of accountability to Ofsted, the RSCs, the Secretary of State, Local Authorities, parents and, of course, the pupils.

The work of the RSCs is overseen by a Headteachers’ Board. However, there is confusion about the role of the Board itself.  Additionally, the role of the RSCs remains unclear.  The supremo, known as the Schools Commissioner, Sir David Carter, is also the Regional Commissioner for the South West.   There are eight others: Ms Rebecca Clark, Ms Jennifer Bexon-Smith (East Midlands and the Humber), Dr Tim Coulson (East of England and North-East London), Mr Dominic Herrington (South East England and South London), Mr Pank Patel (West Midlands), Mr Martin Post (South-Central England and North-West London), Ms Janet Renou (North of England) and Ms Vicky Beer (Lancashire and West Yorkshire).  All of them have stellar curriculum vitae.

On the flip side, the Selection Committee stated, “There is also a lack of transparency in the way the RSCs operate, and decision-making frameworks need to be published to address this.” Besides, even though it is the Governing Body that takes the initiative in converting a school into an academy, there are no governors, per se, on the Headteachers’ Board.  Unless these matters are addressed the public will view these developments as “undemocratic and opaque” according to the Selection Committee.

Notwithstanding, the government website sets out the roles and responsibilities of the RSCs as follows:

  1. promoting the benefits of the academies and free schools programme among school leaders, local authorities, parent groups and community organisations;
  2. leading communications between DfE and the education sector;
  3. supporting brokerage of academy arrangements between those schools that would benefit most from an academy solution and established sponsors with a good track record of performance improvement;
  4. encouraging and helping nurture potential sponsors from the schools and community sectors; and
  5. influencing school-to-school support and working closely with ministers to shape the future development of the academies and free schools programme.

The way in which the regions have been carved up for the RSCs is another chestnut.   There are three regions in London, each of which is tied to another area of the country.   This will create barriers to effective operations.  They don’t match the regions Ofsted uses. For instance, Ofsted deals with London as a whole, not as three separate segments.

The Select Committee articulated other worries.   While acknowledging that the strength of the RSC model is in its regionalisation, the members consider that there is a corresponding risk that inconsistencies in approach and differences in standards applied will diminish confidence in the system. The National Schools Commissioner, they feel, must have a formal role in ensuring appropriate levels of consistency between the RSCs, and in sharing best practice among them.

The government is on record as stating that it wants to cut down on bureaucracy; yet we now have a new, bureaucratic layer of governance in the RSC model.  Schools/academies hitherto were accountable to their governing bodies, Local Authorities, the DfE and Ofsted (apart from parents and pupils).  They are now also accountable to the RSCs.

Are the RSCs in a position to expand their functions with the skeletal secretariats that they have?   Unless there is a significant injection of funding for them, government expectations will not be met. The Select Committee is clear about what they must do, i.e. improve the outcomes for young people rather than merely increase the volume of activity.  The question is: “How is this best going to be achieved?”

Take, for instance, the matter of parental complaints.  In an interview with the Radio 4 Today programme, Sir David Carter was asked whether parents could complain about their children’s schools to the RSCs.  His response was that they could raise issues with their RSCs. However, legally they have no formal role in dealing with these complaints. Only the Secretary of State, the Local Authority, Ofsted and the Governing Body can address them.

IV        Battle of the Knights

A further problem is the potential overlap of functions between the RSC and Ofsted inspectors.     Sir David Carter does not think there is much to worry about.   In an interview with The Times Educational Supplement (TES), he said: “The role of an inspector and what an HMI does is fundamentally different to that of an RSC.

“I think, in some respects, the all-encompassing role of the RSC is a more significant one than the HMI. Our job is to look at a much broader picture than just the Ofsted inspection.  I think if we base the success of an academised system purely on Ofsted judgements, then we miss a real opportunity here because a good school is often more than the sum of its Ofsted parts.”

I wonder whether Sir Michael Wilshaw, the Ofsted Supremo and HMCI, was within earshot when these words were spoken and if so, how he responded to them.  Is this going to be a battle of the educational Lotharios?  It is clear that Sir David is the new blue-eyed boy of ministers and civil servants because the other knight, Sir Michael, has antagonised them in his recent pronouncements.

Tom Richards, a teacher and former policy adviser in the DfE, wrote in the TES on 21 January 2016 that the “Ofsted dragon should be slain” and replaced by the RSCs.  Sir Michael’s tenure will end on 31 December 2016.  Will there will be a significant shift in powers from Ofsted to the Commissioners after that? Who knows.   Sir David is being viewed by ministers and civil servants as the man to make future decisions about the direction of this country’s education.  They appear to have more trust in him than in Sir Michael who is rapidly becoming history.

In his interview with Richard Vaughan of the TES, Sir David was quick to mention that there would be no confrontational, life-or-death interactions with Ofsted.   “I think the difference between what an inspector and a commissioner would do is an inspector inspects and says: ‘That’s what’s wrong with the school.’

“My conversation starts with that and says: ‘What’s your response to this? What do you think your outcomes will be this year?’ And most importantly: ‘What can I do to help?’ That’s the difference between an inspection and a commissioner visit.

“I don’t want to be, and the commissioner shouldn’t be, the person who tells the school/academy what’s wrong.  We have to take the job from where the school/academy is and help it get better.”

Sir Michael has been stung by Sir David’s words.  In an interview with the Education Select Committee on 2 March 2016, he described the RSCs as “faceless” government agents, lacking independence.  “I’m not clear what the regional school commissioners do other than re-broker failing academies,” he said.   “Sometimes relationships are a bit tense because we believe that RSCs should be doing more with underperforming academies, not just those that fail. If a school is coasting, unless we intervene quickly, they will decline.”

Sensing a Mohammed Ali-George Forman heavy-weight fight, MPs asked Sir Michael whether he felt that Ofsted inspectors would eventually be rendered redundant by the RSCs. His response was: “We need Ofsted, which is independent.  That’s the most important thing about our organisation: it’s an independent inspectorate.  The RSCs are not independent.  Their job is to champion academies.  Our job is to say it doesn’t matter if it’s an academy or a local authority school, whether it’s primary or secondary or a free school.  We are only interested in standards. And we provide you, Parliament, with a national picture of standards.  RSCs won’t be able to do that.”

And now back to Sir David whose philosophy is a triangular vision for the future of education in the country.

1)         First, he believes in schools leading the system. “My view is that, in future, every school in the country will be a giver and a receiver of support,” he said. “If you were to compile the top 20 best schools in the country, they won’t be the best schools at everything. My vision is that fundamentally, everybody needs some help and can give some help.”

2)         Second, he is of the view that the Multi-Academy Trust (MAT) must be the formal vehicle for sustained school improvement.  “The MAT structure, whether it is through the chief executive or the board, has the authority to make decisions that will give children a better education – and then be held to account for them.”

3)         Finally, he is ambitious for the country to develop a first class system which will stand out internationally. “I don’t think the ambition should just be for a better education system.  I think it has to be to make our system world-class one, so our young people can compete globally.”

These are brave and noble words.   The challenge will be for him to translate the vision into reality.   Perhaps the government can help by, for starters, clearly establishing the roles and responsibilities of Local Authorities, Ofsted and the Regional School Commissioners so that there can be no equivocation when educational problems arise and provision unravels.

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