Downhills ‘victory’ – so what were the legal issues?

The Secretary of State has today agreed that there should be another Ofsted inspection of Downhills Primary School in Haringey rather than it being forced to become an academy, as he had previously insisted. The governors welcomed his decision.

For a news report see here.

So what were the legal issues?

Following an Ofsted inspection in January 2011, the school was found to be in need of significant improvement within the meaning of section 13(3) of the Education Act 2005 and issued with a Notice to Improve.

In response, the school governors put in place an action plan and took steps to turn things round. All the indications (including at an Ofsted monitoring visit in September 2011) were that those steps were on track to deliver that outcome.

Nonetheless as part of the Department’s wider moves to ‘secure improvements in primary schools that do not meet the expected levels of attainment and progression or have been placed in an Ofsted category’, in December 2011, the Minister wrote saying that he was ‘minded to’ make an academy order under section 4(1)(b) of the Academies Act 2010 and then constitute the governing body in accordance with section 69 and schedule 6 of the Education and Inspections Act 2006, and appoint an Interim Executive Board (IEB) to the school. The IEB would then ‘consider whether’ the school should become an academy. Alternatively (so the Minister offered) the governing body could pass a resolution to become an academy with a named sponsor.

So the ‘choice’ the governing body faced was to decide that the school should become an academy, or be replaced by an IEB which would then (presumably) decide that the school should become an academy.

section 4(1)(b) of the Academies Act 2010 provides that:

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).

Section 59 of the Education and Inspections Act 2006 defines “eligible for intervention” to include schools falling within 61 of that Act which provides that:

A maintained school is by virtue of this section eligible for intervention if—

(a) following an inspection of the school under Chapter 1 of Part 1 of EA 2005, the Chief Inspector has given notice under section 13(3)(a) of that Act in a case falling within section 13(1)(b) of that Act (school requiring significant improvement), and

 (b) where any subsequent inspection of the school has been made under Chapter 1 of Part 1 of that Act, the notice has not been superseded by—

 (i) the person making the subsequent inspection making a report stating that in his opinion the school no longer requires significant improvement,


 (ii) the Chief Inspector giving the Secretary of State a notice under section 13(3)(a) of that Act in a case falling within section 13(1)(a) of that Act (school requiring special measures).

 Ofsted’s guidance explains that:

“Schools with a notice to improve will usually receive a monitoring inspection between six and eight months after their last section 5 inspection. They will usually be reinspected under section 5 of the Education Act 2005 between 12 and 16 months after the last section 5 inspection, although the timing of the reinspection may be influenced by the outcome of the monitoring inspection.”

Section 69 and schedule 6 of the Education and Inspections Act 2006 give power to the Secretary of State to provide for governing body to consist of interim executive members.

 “If at any time a maintained school is eligible for intervention by virtue of—

 (a) section 61 (school requiring significant improvement), or

 (b) section 62 (school requiring special measures),

 the Secretary of State may give the governing body a notice in writing stating that, as from the date specified in the notice, the governing body are to be constituted in accordance with Schedule 6 (governing bodies consisting of interim executive members).”

So the Secretary of State was here threatening to use the power to put in an IEB without waiting for the follow up Ofsted inspection which section 61 of the 2006 Act contemplates. And, to do so in circumstances where that follow up was imminenent and there was no reason not to think that the outcome would not be succesful.

The school threatened a judicial review arguing that it was unlawful:

  1. for the Secretary of State not to wait for the second Ofsted inspection,
  2. for the Secretary of State to use the power to install an IEB in order to turn the school into an academy,
  3. for the Secretary of State (alternatively) to insist on the governors deciding to become an academy without consulting first.

Anyway, today, in what has been characterised as a climbdown by the Secretary of State, he has agreed not to proceed as threatened, and has agreed, instead to exercise his powers under section 8 of the Education Act 2005 to require the follow up Ofsted inspection to take place as soon as practicably possible. That was obviously very sensible. It would clearly have been an alternative course for the Secretary of State to adopt at the outset rather than only doing so in the face of legal threats, and political and local campaigning and pressure.

Anyway, the onus is clearly now on the school to persuade Ofsted that it no longer needs significant improvement.

  5 comments for “Downhills ‘victory’ – so what were the legal issues?

  1. April 23, 2012 at 5:41 pm

    Can you tell me under what specific conditions can the DfE force a Primary school by law to become an academy? I am concerned that Primary Schools in Birmingham may be being intimidated into converting under a threat of forced academy conversion, when they may not actually be legally eligible for such intervention.

  2. May 3, 2012 at 7:38 pm

    Thank you, that’s really helpful

  3. Emma Dunn
    June 13, 2012 at 2:22 pm

    I’m a governor of a primary school which was put into special measures in March. The governing body was criticised for not carrying out its monitoring and evaluation role robustly enough. We have not been replaced by an IEB and the local authority has put in support for the action plan. We are being told we will become an academy (local Diocese as the sponsor because we are a VC church school)and we are resisting and asking for evidence that academy status will solve our problems. We are inviting the Anti Academy Alliance down to speak to us and, having got wind of this, the local authority has told us that if the media gets hold of it they will have no choice but to remove the governing body. It doesn’t seem to me that seeking information would be a sufficient reason to get rid of us, but these days who knows? Any thoughts on our position would be very welcome.

  4. DW
    July 31, 2012 at 3:41 pm

    The local authority cannot simply force you to become an academy. If they wanted to make a change they would either need to go through the statutory process of ‘discontinuing’ the school (which is time consuming and complex) or replace your governing body with an IEB which (so the LA would hope) would then (acting as the new GB) initiate the process of conversion to an academy.

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