A recent application in R (Governing Body of the Warren Comprehensive School) v Secretary of State for Education [2014] EWHC 338 (Admin) for permission to judicially review the Secretary of State’s decision to make an academy order in relation to Warren Comprehensive School (WCS) raised some interesting issues surrounding his powers to order a poorly performing school to convert to an academy under the Academies Act 2010 (AA 2010).
Facts
WCS (in the London Borough of Barking and Dagenham) had been subject to special measures for some time for failing to achieve the necessary standards. The usual approach of the Secretary of State (SoS) is that if a school is in special measures it demonstrates a breakdown of the local authority’s control and that new arrangements are needed. In relation to WCS, the SoS had decided that it should be converted into an academy.
However, the local authority considered that a formal arrangement should be put in place to federate the school with a nearby, excellent school, so that a single governing body was in place for both schools. Although a subsequent inspection by Ofsted acknowledged that the local authority’s informal arrangement between the two schools had generated some improvements, the SoS’s decision letter of 6 January 2014 expressed his view that the federation would not achieve the necessary results and that the best option for securing WCS’s long-term future was for it to become a sponsored academy with another school.
However, the formal partnership could not be put in place until all those likely to be affected were consulted on the proposal. A consultation had been started in relation to the federation issue and the existing governors of WCS, who were consulted on the SoS’s proposal to convert WCS to an academy, had expressed their views against the proposed sponsored academy proposal. The question for the High Court to decide was whether, in the circumstances, it was arguable that it would be unlawful for the academy order to be made in relation to WCS (which would result in the governing body of the school being effectively immediately dismissed and an interim executive board (IEB) being put into place to deal with the academy change and to implement what was needed for academy status) before consultation took place or whether consultation should take place before the academy order was made.
So what are the SoS’s powers to order a school to convert to an academy conversion and what does the AA 2010 say about consultation?
Statutory powers to force a conversion
Section 4 of the AA 2010 empowers the SoS to force a maintained school, that is perceived to be poorly performing, to convert to an academy. The section provides that an academy order may be made in respect of a school in England that is “eligible for intervention” within the meaning of Part 4 of the Education and Inspections Act 2006 (EIA 2006). Therefore, a maintained school can be ordered to convert to academy status where:
- A local authority has given the governing body a warning notice in relation to:
- low standards of performance at the school;
- a serious breakdown in management or governance that is prejudicing performance standards; or
- a risk to the safety of pupils or staff due to a breakdown in discipline.
(Section 60, EIA 2006.)
If the school fails to comply with the authority’s warning notice, it is “eligible for intervention” and therefore an academy order can be made if the school fails to comply with the warning notice to the authority’s satisfaction given the SoS’s increased powers in section 44(3) of the Education Act 2011 to direct the local authority as to the action it should take.
- The school requires “significant improvement” (section 61 EIA 2006) if, following a school inspection, Ofsted gives notice of that fact to the school. This status will continue until Ofsted gives notice that the school no longer requires significant improvement.
- The school requires “special measures” if, following an inspection of the school, Ofsted has given notice to that effect. This status continues to apply until Ofsted gives notice that the school no longer requires special measures.
One of the remedies under Part 4 of the EA 2006 is for an IEB to be imposed, whose members will replace the existing governing body. Once the problem is sorted by the IEB, the school will revert to the usual governing body arrangements. However, if a school or a governing body was opposed to an IEB, it is possible for the SoS under section 69 of the EA 2006 to appoint an IEB of members who he would trust to turn the school into an academy (although there would have to be a consultation before doing so with the governing body of the school and the local authority before that power was exercised).
Section 5 of the AA 2010 provides that there must be a consultation before conversion takes place. However, this consultation may take place before or after an academy order has been made in respect of the school (see section 5(2) of the AA 2010). Although consultation after an academy order (which expresses the SoS’s view that an academy status should be conferred) is made does not necessarily indicate an open mind to the outcome of the consultation, there have been examples of situations where consultation after the making of an academy order has resulted in the SoS deciding not to implement the order.
High Court decision
The High Court considered that it would have been sensible for the consultation that was started on the federation proposal to be joined with the consultation required under the AA 2010 on the academy status, so that the consultees had an opportunity to make an informed decision on what each proposal offered and the future prospects of each proposal. In the circumstances of the particular facts of this case, the court considered it was desirable for consultation to take place before the academy order was made since if, as a result of the consultation exercise, the SoS decided that an academy was not the solution, then the IEB imposed on WCS would have to be “unscrambled”.
It was clearly a matter for the SoS to take the view that academies are preferable and indeed Parliament had enabled him to be the decision-maker in that regard. However, the High Court considered that the SoS had to have regard to the particular facts of an individual case. This case was unusual in that there were two proposals to effect improvements in WCS and Ofsted was scheduled to carry out a further inspection of the school. It was highly desirable for this inspection to take place as it may indicate whether the school’s interim arrangements were achieving the desired results. Therefore, it was arguably premature for the SoS to impose the academy order immediately.
Although it was not for the court to interfere in matters that are left to the discretion of the SoS, the High Court was persuaded that there were sufficient reasons, on the facts, to show an arguable case that the SoS had not properly taken into account these circumstances in reaching his decision to make an order converting WFS to an academy. The court considered that it was:
- Premature to make the academy order.
- In the interests of everyone that the consultation that is required under the AA 2010 should take place before the academy order is made.
For these reasons, the High Court granted the claimant governors permission to judicially review the SoS’s decision to make an academy order. Having granted permission, it ordered that the interim relief which had been previously granted by the court should continue in order to maintain the status quo but that a joint consultation on the proposed arrangements (federation or an academy order) should take place as soon as possible.
The case appears to be the first one where an academy order has been challenged in this way and, if the approach adopted by the court is correct, it suggests other challenges to academy orders may follow. For this reason, the SoS was granted permission to appeal against the interim relief order (which as the court pointed out was effectively tantamount to an appeal against the grant of permission) but the court stressed that this should not stop the consultation exercise being commenced. It will be interesting to see whether, following the consultation, the SoS accepts that the formal partnership arrangements proposed by the local authority will be sufficient, or whether ordering the school to convert to an academy is the way to go.