The government’s policy on ‘under-performing’ schools is changing rapidly. This is the second draft of our guidance in order to keep up.
As we currently understand it, the government’s current intentions are:
The 200 primary schools who have been below all three criteria for floor standards for five years or more will be rapidly forced to seek sponsored academy status.
A further 100-200 schools who have been below all three criteria for two or three* out of the last four years, and who fall into nine local authorities (yet to be confirmed) will also be under intense pressure.
These arrangements replace the previous ‘lists’ of 1400 and the 500 schools. For schools that find themselves in the 200, there will be relatively few options; schools in the next tier have slightly more options, but are still constrained; schools on the border of these groups have a range of things they can do.
It is expected that forced academies would convert in September 2012.
*There is still ambiguity on the treatment of schools who boycotted SATs in 2010. See more below.
Many members have contacted the NAHT to ask whether the Department can do this, how it is possible and what they can do if they are on the list of identified schools. This documents sets out the framework by which schools can be made into sponsored academies and suggests ways member might wish to respond.
NAHT's own position
We believe that structural solutions such as academy status are rarely the silver bullet they are made out to be. Ambition, focus, expertise and energy are the sources of school improvement and these can be found in any school.
We believe that an unrelenting focus on attainment has too often meant outstanding schools in challenging areas are unfairly stigmatised and penalised; too often a rounded education is sacrificed to the unrelenting pressure of targets and tables. We also know that sustainable change is not a quick fix.
Too often, floor standards are used to threaten and intimidate school leaders. Dedicated professionals can be treated appallingly in these processes.
Of course, under-performance must be addressed but any such approaches must follow sustained, high quality, long term support. They must take account of the trajectory and plans of the school. Where a school is on the up, or where a new leadership team is in place, it should be helped rather than distracted. Partners in improvement should be chosen not imposed.
As always, NAHT will fight to protect the employment and dignity of our members in these situations. We will help you understand the criteria and processes. We will challenge mistakes and unlawful acts. However, we will also go further. If our help is wanted, we will seek to help you and your school avoid imposed solutions by helping you develop your own plan and partners to suit your values and vision. This is a new area of work for us, but it is a logical extension of our duty to protect members and promote our vision of a better way in education.
Under the Academies Act 2010:
The Secretary of State may make an Academy order in respect of a maintained school in England if:
(a) the governing body of the school make an application under section 3, or
(b) the school is eligible for intervention (within the meaning of Part 4 of EIA 2006).
An Academy order is an order for the purpose of enabling the school to be converted into an Academy.
A maintained school is “converted into” an Academy if Academy arrangements are entered into in relation to the school or a school that replaces it.
If an Academy order is made in respect of a school, the Secretary of State must give a copy of the order to:
(a) the governing body and head teacher of the school, and
(b) the local authority.
What is meant by ‘eligible for intervention’?
Under the Education and Inspection Act 2006
A maintained school is eligible for intervention if:
(a) the local education authority has given the governing body a warning notice
(b) fourteen working days have passed
(c) either the governing body made no representations to the Chief Inspector against the warning notice or the Chief Inspector has confirmed the warning notice
(d) the governing body has failed to comply, or secure compliance, with the notice to the authority's satisfaction by the end of the compliance period
(e) the authority has given reasonable notice in writing to the governing body that they propose to exercise their powers
A local education authority may give a warning notice to the governing body of a maintained school where the authority is satisfied:
(a) 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
(b) that 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
(c) that the safety of pupils or staff of the school is threatened (whether by a breakdown of discipline or otherwise).
Standards of performance of pupils at a school are deemed to be low if they are low by reference to any one or more of the following:
(a) the standards that the pupils might in all the circumstances reasonably be expected to attain,
(b) where relevant, the standards previously attained by them, or
(c) the standards attained by pupils at comparable schools.
A maintained school is also eligible for intervention if it has been placed in an Ofsted category.
The Education Bill 2011 contains measures that will allow the Secretary of State to direct a local authority to issue a warning notice. Though this has not yet been passed by Parliament, it is likely to do so in late 2012, which may affect forced academies. However, it is worth saying that the legislation referred to above is in place and can be used as detailed to enable conversion to academy status.
So what are the criteria?
Where a school has been below the CURRENT floor standards (not those pertaining at the time) for 5 or more years and shows no sign of improvement, the school will be identified as one eligible for sponsored academy status. The floor standards include measures of both attainment and progress – and all three criteria (attainment and progress in English and Maths) must be met.
There are really only two practical responses for a school in the 200. The first is to challenge the criteria and the second is to quickly find a partner of their choosing.
Not all local authorities are applying the criteria appropriately, so it is worth double checking the data being used and, if you boycotted, insisting that the teacher assessment data for 2010 is taken into account. Please contact the NAHT if you need assistance in this. Some areas are suggesting schools are on DfE lists when they are not; others are failing to take account of 2010 data.
It is perfectly possible to choose your academy sponsor rather than be pushed into a chain. Although this is very much an option of last resort, it would be better to find a partner who shares your vision and values for education and with whom you can be confident that you will be taking the school forward. If the partner is to be another school, it will need to be an academy itself (or in some circumstances a mixed federation). The Department can veto proposed partners, however, so they will need to be credible in terms of their own performance.
For schools in the next tier under threat, there are slightly more options to define their own way forward and take control of the situation. Demonstrating an upwards trajectory at key stage two is vital. As well as challenging the criteria used or pre-emptively ‘academising’, two additional mitigating circumstances will be viewed more favourably:
For schools who fear they may slip into one of the categories if floor standards are raised in future, or if the nine areas are expanded, there are many more options, including work with LLEs and NLEs and other partnerships. However, we are understand that there are no immediate plans to raise the primary floor standard.
It is important that members can clearly identify the areas in which they need support, look for actions necessary to address these areas and partners who can offer the necessary support. An action plan can then be drawn up to demonstrate how it is intended to move the school, over time, above the floor standards. In this way, it may well be possible to pre-empt the move to academy status.
It should be noted that the report of the Bew Review recommends that a school's performance should be measured as a three year rolling average. Although not yet accepted by the government, these recommendations implicitly set a minimum time frame for meaningful change, which may be helpful in your discussions.
Where schools boycotted the 2010 SATs, teacher assessment data can be used to replace the data normally derived from the SATs results. It is important that the teacher assessment data is robust and, where possible, externally moderated. Again, this is not being consistently applied in all local authorities, some of whom appear to be seeking ‘payback’ so if you run into problems here, please contact NAHT.
Identification for an Academy order
What happens if a school has been identified for an Academy order?
The local authority will usually contact the school to discuss the Academy conversion process and identify a local or national sponsor.
The Office of the Schools Commissioner brokers sponsored academy arrangements between those schools ‘that would benefit most from being a sponsored academy’, and a range of approved and established sponsors with a good track record of performance improvement.
However, this does not mean that sponsorship by a national chain of academies must be accepted as the only option. Partnerships with successful local schools and federations are also perfectly good solutions. And could be initiated by the schools concerned.
The new Sponsor
Sponsors take responsibility for establishing the Academy Trust, the governing body and the appointment of the Principal.
So what about the existing leadership?
Existing statutory guidance – Schools Causing Concern Guidance 2008 - already sets out the LA’s powers to remove delegated budgets, replace governing bodies with Interim Executive Boards and potentially remove leadership where the school is eligible for intervention.
They state in particular:
Local authorities should consider a wide spectrum of options through which leadership teams of schools causing concern can be supported and challenged, whilst recognising that ultimately it may be necessary to remove the Head teacher or other staff if they are incapable of making the changes the school needs. Throughout any such discussions, Head teachers’ pay and conditions should be respected, and good relations with recognised workforce unions maintained.
Before coming to such a decision, local authorities should always consider whether the person has had sufficient time in post to make improvements and should recognise that otherwise competent leaders may sometimes be overwhelmed by circumstances beyond their control. It may therefore be beneficial for the local authority to commission an audit of the school’s leadership and management capacity, including at middle management levels.
Where a Head teacher remains in post at a school causing concern, (s)he may benefit from new appointments at Deputy Head teacher or senior teacher level, especially where appointees bring skills which correspond to the school’s priorities for improvement. It may also be beneficial to consider ways in which the governing body could be strengthened, or an external partner could become involved to provide additional support for the school’s leadership, for example by providing a consultant or mentor Head teacher. Arrangements made with mentor and executive Head teachers should be made in writing, and with the agreement of the governing bodies, Head teachers and local authorities involved.
My school has been identified to become a sponsor academy – what should I do?
Any member in a school identified for sponsor academy should make contact with their Regional Officer as a matter of urgency.
In summary, members may also wish to consider the following:
Check the criteria. Does your school genuinely meet the criteria for the floor standard and intervention? Crucial areas to look at include: track record of recent improvement, new leadership team, high rates of student progress. NAHT has clear definitions of the floor standard criteria and can sometimes work with LAs and/or DfE to get schools removed from the list if they have been wrongly placed - and have done so in several LAs.
Examine whether there is a school improvement plan short of radical restructure that can address the concerns. There are many possibilities here short of a change of status including close local collaboration. Members may find the attached sample Memorandum of Understanding useful as a starting point. Clusters, soft or hard federations, work with NLEs or LLEs are all possibilities.
As an absolute last resort, if all else has failed, NAHT could also help you find a form of academy status and partner which match your values and vision, and protect your employment and your team's. This is not an endorsement of the government's strategy but a final attempt to support members.
Mount a legal challenge against the academy order. If appropriate procedures have not been followed or there is significant local opposition to the change, a challenge may be possible.
NAHT will always work to protect you as an individual in this process, whatever else is happening to the school status.