The Department for Education is being urged to scale back powers to intervene in academies that have repeatedly failed to achieve “good” Ofsted ratings.
Earlier this year the DfE announced it was creating new powers to allow it to academise schools or rebroker academies deemed to be “not making necessary improvements” following two consecutive Ofsted ratings that are less than “good”.
Before these new “coasting schools” regulations were introduced, the DfE could only intervene and issue academy orders for schools rated “inadequate” by Ofsted.
Now education leaders say they are lobbying the DfE to urgently amend the regulations to exclude Ofsted ratings handed out before academies joined their current trust.
The Confederation of School Trusts (CST), the Association of School and College Leaders (ASCL) and the NAHT school leaders’ union say the DfE’s policy is unfair to trusts that have taken on challenging schools.
The DfE has told Tes that regional directors are writing to trusts to say they will not intervene in academies upgraded to “requires improvement” from “inadequate” after joining a trust.
But the CST is pushing the DfE to go further, to also exclude schools that have received two “requires improvement” ratings in a row where the first was issued to a predecessor school.
Steve Rollett, deputy chief executive of the CST, said: ”A trust should not be held accountable for inspection outcomes prior to it taking over.
“To do so would risk disincentivising trusts from taking on schools in need of improvement. We have made representations to ministers that the regulations should be amended.”
CST chief executive Leora Cruddas added that the government has been warned this needs to happen “urgently”.
Fears over DfE academy intervention
Tom Middlehurst, the ASCL’s curriculum, qualifications and inspection specialist, echoed the CST’s concern that the measure could put trusts off from taking on schools with lower Ofsted ratings.
“School improvement can take time, and this puts trusts in a position where the first Ofsted inspection a school gets could put it into a category of intervention from the government,” he said.
He said the policy “could be open to legal challenge”, adding: “When a school becomes an academy, it receives a new unique reference number: it is a different entity.”
Katie Michelon, a senior associate at law firm Browne Jacobsen, said many trusts feel that the new intervention measure “diminishes the ‘fresh start’ that academisation previously offered”.
“It also somewhat departs from the DfE’s previous line that academies are entirely distinct from their predecessor maintained school,” she added.
However, she said that she felt a legal challenge was unlikely to succeed.
“The claim would need to be brought on public law grounds, which come with particularly high thresholds,” she said.
“This is a policy position which has been consulted on and which the government of the day is entitled to put in place... The policy may appear inconsistent, but it would be very difficult to establish that it was actually unlawful.”
‘Mixed messages’
James Bowen, the NAHT’s head of policy, said the DfE approach is directly at odds with Ofsted’s inspection handbook, which was updated this year to make it explicitly clear that when a maintained school becomes an academy, its unique reference number (URN) changes and it “legally becomes a new school”.
The Ofsted handbook adds that “judgements of the predecessor school are not those of the new school”.
Mr Bowen said: ”There is a real sense of mixed messages here.
“For a long time there has been a clear understanding in the sector that the judgements for a predecessor school belong to the predecessor school, and not to the school that replaces it.
“As such, it seems highly questionable for the DfE to use the performance of a predecessor school as part of the criteria used to define a school as coasting.”
He added: “Ofsted itself is clear that the outcomes of a predecessor school will not feature in the school’s judgement, and legally relate to another school, so it is unclear and frankly unhelpful that the DfE appears to be taking a different approach.”
Ofsted warned that some schools with consecutive “requires improvement” ratings may already be improving and under strong leadership.
The DfE said earlier this year that intervention at schools below the new Ofsted threshold would initially be focused on England’s 55 Education Investment Areas.
Do MATs want to take on double RI schools?
Concerns have been voiced privately in the sector that asking multi-academy trusts to take on schools with two “requires improvement” judgements might be asking them to intervene when underperformance has become too entrenched.
However, some trust leaders who spoke to Tes said their organisations would be up for this challenge.
Benedick Ashmore-Short, chief executive of The Park Academies Trust, said: “Taking on a school that has received two RI judgments would not be a concern for us at TPAT.
“Context and the reasons for each case are really important to understand, of course, and will always be unique to that individual school. But a strong MAT with a clearly codified school improvement model would be able to support and start the journey to ‘good’.”
Lee Mason-Ellis, CEO of The Pioneer Academy, said: “I fully support the aim for every school to join a strong trust, and we would have no qualms about a double RI school joining our trust.
“I would also say that where it is possible, there is a clear logic for clusters of schools in an area to come together to join the same trust, to build upon their local ties and provide a vehicle for them to share resources and best practice.”
Regional directors’ letters to trusts
A DfE spokesperson said regional directors have been writing to trusts with schools eligible for intervention “confirming that no further action will be taken in cases where their academy has improved from ‘inadequate’ to ‘requires improvement’ at its first inspection since joining a trust”.
They added: ”Multi-academy trusts have been responsible for turning around many underperforming schools and we recognise they must be given time to deliver turnaround plans.
“Academies are eligible for intervention based on their previous Ofsted ratings before joining the trust for the sole purpose of allowing us to intervene in exceptional circumstances where it becomes clear the trust no longer has capacity to support the school.”
Tes has asked the DfE how many schools have been considered for intervention with two “requires improvement” ratings so far, but it has not provided these figures.
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