Around 200 pupils stayed out of lessons, chanting and protesting when the bell went. They demanded a meeting with the Head who agreed to meet them later in the morning. At this meeting, complaints were made that once again only one side of the academy argument was given. There are plans for an important school council meeting at the start of the new term.
A LEGAL threat by parents has forced an Islington school to abandon its plans to become a new academy – which would see it opt out of local authority control – in a move that observers say could have implications across the country.
Governors at William Tyndale School decided to plough ahead with the plans last month, despite complaints by parents that they had not been given enough time to respond to a consultation.
A parents’ petition opposing the academy plan gathered 200 signatures in just three days.
So furious were the parents – even some who supported the academy plans – at the way views were ignored that they consulted lawyers.
The lawyers said that the consultation was so flawed it could be challenged in the courts and so the parents threatened the primary school with litigation.
Sources say the school’s lawyers agreed that the case could be challenged, forcing governors to abandon their plans.
Turning primary schools into academies – which receive their funds directly from Whitehall – is a key reform under the Coalition government and Conservative education secretary Michael Gove.
Observers say that Strictly Education, the private company running the William Tyndale consultation, did follow the guidelines under the new rules. That its consultation is so open to challenge
reveals that the new academy rules are flawed. It is understood that parents across the country are planning legal actions of their own. Crucially, the school failed to carry out an assessment of the
impact changing its status would have on the wider community, especially in terms of equality – how it would affect people of different religions, gender and disabilities.
Supporters of the academy plans claim they will give schools greater control over their budgets, and more cash.
Opponents say the schools will no longer be accountable to elected officials – the council – and question what would happen in an emergency, such as a fire. They would also lose extra benefits,
such as free school meals.
None of the parents at William Tyndale was willing to speak this week. In a letter to them, the chair of governors, Professor Jonathan Weber, said: “The governing body has taken legal advice and,
separately, considered the wider impact on the school of any contested litigation.
“Whatever the legal merits of the claim, the governing body has concluded that it is not in the interests of the school to become engaged in litigation that may take many months and would expose
the school to very considerable (and probably irrevocable) legal costs.
“We have also taken into account the inevitably divisive effect of such protracted litigation within the school community.”
He goes on to say, however, that the consultation will be reopened and a decision taken in September.
Labour councillor Richard Watts, the Town Hall’s education chief, said that this still did not give parents enough time to make their minds up and consider all the arguments – there are only two
weeks of term time left. He called for a full parental ballot.
“This is an irrevocable decision that will affect generations of children,” he said.
The school, in Richmond Grove, has battened down its hatches, with no governors or parents willing to talk to the press.
However, it is understood that parents were furious when the governing body refused to accept the 200-signature petition when they met to make their decision. The Tribune has also been told that
the governing body is not at full complement and no elections have been held to fill the vacancies, which could also void any decision it makes.
Ken Muller, assistant branch secretary of the National Union of Teachers in Islington, said the NUT had concerns about the consultations at the three schools that have recently tried to convert to
academies in Islington.
The others are New North Community School, which is going ahead with academy status, and Poole’s Park, in Finsbury Park, which has shelved plans for the time being.
“We didn’t think they carried out the consultation correctly in the first place,” he said. “We have lots of concerns about the consultations in the three schools that have recently tried to go for
academy status. There is a group of parents at William Tyndale who are determined to secure a proper right of consultation. I gather they are not exactly happy with the outcome as it is.”
Cllr Watts added that the legal threat called into question the role of Strictly Education, which would provide services to any opted-out school and organised the consultation.
He went on: “This is an irreversible decision and extremely risky. I’m very concerned about governors rushing in on poor advice that is going to have consequences for children in this community
for years to come.”
A spokesman for the Anti-Academies Alliance added: “It’s of no surprise to me that there are problems with the conversion of William Tyndale to academy status. This is because the Academies
Act, which was the brainchild of Michael Gove, is flawed because it does not set out proper procedure for consultation.”
The school did not respond to requests for a comment. However, Professor Weber added in his letter: “Members of the governing body consulted widely prior to the decision [to become an
academy] and conducted extensive research as to the relative risks and benefits of conversion.”
Published: 15th July, 2011
by ANDREW JOHNSON
AAA legal advice sheet
This advice is based on advice from different sources. You should not proceed without seeking your own legal advice as every case if different. However it sets out the two main areas in which legal challenges have met with some success – consultation and public sector equalities duties.
1. The Academies Act imposes a duty to consult prior to the school becoming an academy which is set out in section 10 of the Act. It states that:
Section 5 Consultation on Conversion
(1) Before a maintained school in England is converted into an Academy, the school’s governing body must consult such persons as they think appropriate.
(2) The consultation must be on the question of whether the school should be converted into an Academy.
(3) The consultation may take place before or after an Academy order, or an application for an Academy order, has been made in respect of the school…”
Consequently a failure to do so may render the schools open to legal challenge. Consultation must take place before a funding agreement is signed by the Secretary of State.
2. The Academies Act does not specify who must be consulted so it allows s some discretion as to whom it chooses to consult and the timing of the consultations. Some schools and LAs have interpreted this to mean that they don’t have to consult parents or pupils. Article 12 of UN Convention on the Rights of the Child stipulates that children have a right to be consulted on all matters affecting their education. In addition the law requires schools to consult somebody and it would be irrational if the schools failed to consult parents or children.
3. Many schools are consulting but adopting sham consultations. Once a body has decided to consult it must do so lawfully and there is a mass of case law on what this means. What is the extent of the common law duty of consultation? It has been set out by a judge, Stephen Sedley QC as:
- Consultation should be undertaken when the proposals are still in a formative stage;
- Adequate information should be given to enable consultees properly to respond;
- Adequate time should be provided in which to respond;
- The decision maker should give conscientious consideration to the response to the consultation.
To this could be added a further principle.
- If the information is incorrect or misleading, or does not give true reasons for putting forward the relevant proposals then this also may constitute a sufficient flaw in the consultation process to lead to a quashing of the subsequent decision.
Where the decision maker knows that a significant number of people affected by the proposal may not speak English then it is probably good practice to provide a version or versions of the consultation document in the principle language of those likely to be affected by the proposal.
4. Staff, parents and pupils should be given proper information to allow an informed response. The case of Coughlan confirms that for a consultation to be lawful, it “must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response.” The issue of timing is also important. The Sedley recommendations are 12 weeks but many governing bodies are allowing only 4 or less.
45. In addition to case law there is now substantial guidance available both from the Cabinet Office which is more general but also guidance from the National Council of Governor Services which deals specifically with guidance for consultation on academy status. It states
“In order for the consultation to be meaningful, full information on the implications would need to be provided. Information could include: Main advantages identified by the governing body – including what you would do differently with constraints removed
The disadvantages that the governing body considered details of the proposed academy arrangements; details of the proposed governance arrangements including details of the directors of the company which will enter into the Academy arrangements and details of the composition of the governing body;
any proposed changes in the arrangements for the curriculum, for special educational needs, for pupil discipline, exclusion and for complaints, and confirmation that there will be no change in the admissions arrangements;
details of the additional money which would be available to the school (either as capital or revenue funding) if it became an academy;
details of any additional obligations and costs which fall on the school if it became an academy; and details of the support that is proposed to be given to other schools and any other possible effect on other schools.
2. Public Sector Equality Duties
When deciding whether or not to become an academy the Governing Body has a clear legal duty to have ‘due regard’ to the need to promote race, gender and disability equality and tackle discrimination. They need to complete equality impact assessments both within the school and for the wider community. There has been a very recent judgement involving London Councils. This related to the failure to do an equalities impact assessment. Many schools do not appear to have conducted any equalities impact assessment. This is open to legal challenge.
What should you do next?
1. Contact the AAA office for further advice
2. Consider appointing your own solicitor. You may need to find someone who can apply for legal aid.
3. Gather all the relevant documents together.
4. If the consultation is still on-going, write to the school to require detailed information on the proposed implications, business plan etc
5. Write to the Secretary of state for Education asking him to delay signing an academy order for your school until these matters have been resolved
6. Consider a press statement and local public meeting to inform parents and the local community
‘We will not be bought for £1million’: That is the message from the headteacher of a Portland primary school which has opted out of the island’s proposed academy vision.
The governing body of St George’s Primary School has decided to formally reject the invitation to convert to sponsored academy status.
However the governing body of St George’s Primary School believe £7million is ‘inadequate’ for the proposal and say that their school has its own development plans for the future.
They have opted out but pledged to ‘co-operate informally’ with the academy ‘in every way possible way to ensure a bright future for all the children of Portland’.
The government recently announced that Primary schools that are ‘underperforming’ face being converted into Academies.
An analysis of the information about the schools, and a comparison with the highest performing primary schools, shows clearly what Michael Gove is doing.
Many of the schools he has targeted are in our poorest communities, with high numbers of pupils eligible for Free School Meals, high levels of Special Educational need, and higher levels of English as a second language.
Gove says that these schools should become Academies, and be run by a successful school.
Since these schools have pupils requiring extra support, wouldn’t it be better to work with the Local Authority to help increase the support that the school receives?
As Tony Draper from the National Association of Head Teachers stated recently:
“A school has got to be judged on broad measures of progress and not just crude statistics on attainment.
“We’re looking at schools that are improving and are improving in many ways, making progress for the children throughout their school lives.
“If the school is making great progress with pupils from a low starting point then that should be celebrated, not condemned and the schools automatically made into academies.
“But what we found in our school is that with good support from the local authority and working on the culture, teaching and learning, you can make a difference.
“Let’s not forget that children come from very different backgrounds and they have very different starting points in education. There are many schools where they don’t achieve the floor standards but they are making good progress throughout their school lives.”
Michael Gove claims that Academies worked for ‘underperforming’ secondary schools. In fact the evidence does not back him up. Of the Academies which entered pupils for GCSE’s in 2008 and 2009, and therefore progress can be measured, 1/3 improved, 1/3 stayed the same, 1/3 saw their results fall. This is a far worse proportion than for state schools.
Academies are not a silver bullet. They do not guarantee improvement. They DO guarantee the break-up of a democratic local education system.
We have analysed the available government data below. We include links to the original data.
We have analysed the DfE performance data which is available for 2010. It only reaches back to 2008. This means we do not have access to data more than 3 years old, and cannot compare exactly with the government figures.
We have found 425 schools where less than 60% of children reached the ‘minimum floor standard’ for 3 years. We have compared their results with the 500 top performing primary schools.
We have used government performance tables for 2010
and the schools census for 2010
DfE statement on ‘underperforming’ schools.
“There are around 1,400 primary schools below the primary ‘minimum floor standard’ (less than 60 per cent of the children reaching a basic level in English and Maths at 11, and where children make below average progress between seven and 11) based on 2010 results. Of these, about 500 have been below the floor for two or three of the last four years. A further 200 have been below the floor for the last five years (120 of these roughly 200 have been below the floor for more than a decade).”
The Department for Education has access to the data over the last 10 years, and the staff numbers to analyse them.
What Michael Gove does not tell you is this:
Schools are improving
270 of the 425, 64%, of these schools saw their results improve from 2009 to 2010
Special Educational Needs
Of the 425 schools with less that 60%
Only 76 schools, 18%, have less than 10% of their pupils with SEN support
133 schools, 31%, have more than 20% of their pupils with SEN support
4 of the schools have over 40% of their pupils with SEN support
Compare this with the 500 schools with the highest results in 2010:
329 school, 65%, have less than 10% of their pupils with SEN support
Only 19 schools, 4%, have more than 20% of their pupils with SEN support
Free School Meals
Of the 425 schools with less that 60%
Only 4 schools have less than 10% of pupils eligible for Free School Meals
389 schools, 92%, have more than 20% of pupils eligible for Free School Meals
Of the 500 schools with the highest results in 2010
386 schools, 77%, have less than 10% of pupils eligible for Free School Meals
Only 39 schools, 8%, have more than 20% of pupils eligible for Free School Meals
First Language is not English
Of the 425 schools with less than 60%
143 schools, 34%, have more that 20% of pupils whose first language is not English
210 schools, 49%, have less than 10% of pupils whose first language is not English
Of the 500 schools with the highest results in 2010
49 schools, 10%, have more than 20% of pupils whose first language is not English
401 schools, 80% have less than 10% of pupils whose first language is not English