Education and Adoption Bill to become law

The Department for Education (DfE) has confirmed that the Education and Adoption Bill has completed its journey through Parliament and will now be put forward for Royal Assent. This means that the Bill will shortly become the Education and Adoption Act.

What does this mean?

The Education and Adoption Act will introduce the notion of “coasting schools”. This phrase has been the focus of much scrutiny and criticism in the legal and public press.

If a school is deemed to be a coasting school, then it becomes treated as “eligible for intervention”. This means that both the responsible local authority and the Secretary of State will have various intervention powers regarding that school. This can include requiring the coasting school to work with another school which is deemed to be doing well. Significantly, the Secretary of State also has the power to make an academy order regarding the coasting school. That effectively means that the coasting school will have to become an academy.

One of the concerns is that the definition of a coasting school is left to down to Regulation, rather than being defined within the Act.

Regulations are secondary legislation, meaning that they can be amended without the scrutiny required by an Act of Parliament. That means that the definition of a coasting school can be changed. Given that this is such an important part of the law, there is some serious concern that this can be changed with relative ease.

What is a coasting school?

As the Regulation has not yet been written, it is not clear precisely what will be considered a coasting school. The most recent consultation document states:

“A school will be coasting if in three consecutive years it falls below a new coasting level set against the Progress 8 measure. This level will be set in 2016 and will be above the absolute floor standard of –0.5.”

Progress 8 means that, from 2016, each year 11 student’s progress will be compared with the performance of other year 11 students nationally with the same starting point.

For each pupil, actual progress will be compared with expected progress across eight subjects, including English and maths. A school’s Progress 8 score will be made up of all their year 11 pupils’ scores.

“The DfE will set a Progress 8 score and if schools do not reach this level we would be concerned that they were not fulfilling the potential of their pupils. Where a school falls below this bar for three years then they will be coasting. These schools will need to demonstrate that they have sufficient capacity to improve or face further action.”

Until the long-term coasting school definition can be set, and assessed, the interim definition of coasting is likely the be that fewer than 60 % of pupils achieve five or more A* to C grades including English and maths at GCSE, and the percentage of pupils making expected progress in English and maths is below the national median (in 2014, the national median was 74 per cent in English and 67 per cent in maths).

What about coasting academies?

It is, of course, possible that an academy could meet the definition of a coasting school. Over the past few weeks there have been reports of single academies, and whole trusts, failing to meet necessary standards.

The Education and Adoption Act will enable the Secretary of State to effectively revoke the funding agreement for an Academy. That is the legal position. However, there is no clarity in terms of the practical position. In particular, what happens to the pupils.

The issue would be that an Academy could have its funding agreement termination. The local authority could not ‘take over’ because that could amount to the creation of a ‘new’ school – which the Academies Act 2010 makes impossible. As such, it seems that the only option would be for other academy chains to be asked to ‘take over’ the academy. There are two potential outcomes here:

  1. That multi-academy trusts continue to increase in size as single academies / smaller chains have to be ‘taken over’; and/or
  1. There is a real prospect of pupils facing a situation where their school is closed without a clear alternative being available.

We suspect that the second option, in practice, is very unlikely. It is more likely that the DfE will direct cooperation between academies which ultimately result in the coasting academy being taken over. As such, the first option is likely. It seems that the overall outcome of this Act will be the growth in size of multi-academy trusts.

What does this mean for children with special educational needs?

This Bill is the most recent development in the advancement of academies, which started with the Academies Act 2010. That Act introduced academies, but also meant that local authorities could not create new maintained schools.

Academies are a hybrid of maintained and independent schools. Academies receive funding directly from the Department for Education. This means that they are still required to comply with education law, but they are entirely independent from the local authority that they sit in.

There are two types of academy:

  • Sponsored academies – This was the ‘original’ form of academy. They are usually set up to replace under-performing schools with the aim of improving educational standards. The ‘Sponsor’ is responsible for setting up a Governing Body, placing a head teacher and setting up a Trust to fund the academy.
  • Converter academies – These are successful schools that have decided to convert to academy status. Before a school can be a ‘converter academy’ it must obtain a good or outstanding Ofsted rating. These are the newer form of academy introduced from 2010.

The growing concern is that the exclusion rate from academies is significantly higher than from maintained schools.

During 2007 – 2014 exclusion rates, particularly permanent exclusion rates, were much higher from academies, reported here. A recent Department for Education report found that (sponsored) academies were twice as likely to issue a permanent exclusion. In addition to this, children with special educational needs are eight times as likely to be issued with a permanent exclusion.

There is a substantial ‘cross over’ between the increased likelihood of exclusions from academies and the increased likelihood of exclusion of a child with special educational needs. This could suggest that at least some of the improvement in the academies is down to excluding children with challenging special educational needs.

It is also worth noting that children with special educational needs are likely to make smaller rate of progress than other pupils. That is likely to cause the school’s stats to appear lower, which could cause it to attract the definition of a coasting school.

Conclusion

It is clear that the academy model is being held out as the solution to problems in the education system. There is very little evidence to empirically show that making a school an academy actually makes a positive difference, especially for disadvantages pupils and those with special educational needs.

It is worth bearing in mind that local authorities have an obligation to ensure that children with a Statement of Special Educational Needs (or an Education, Health and Care Plan) receive the support in those documents. As academies increase in number, local authorities will increasingly only be able to ensure delivery of support at arm’s length because, ultimately, local authorities have no responsibility or authority over academies.

The Education and Adoption Act will lead to the introduction of more academies replacing existing maintained schools. Only time will tell what the long-term impact of this will be.

I am so happy at the outcome, I don't think we would have had such a comprehensive service from any other law firm, and you took the worry away...I do not regret a single second of the whole process, apart from the bit before you got involved. 

James' mother, Boyes Turner client

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