bridging the gap the ‘middle tier’ debate in the education sector Browne Jacobson
contents Foreword
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On good authority...
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A changing of the guard...
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Bibliography
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about Browne Jacobson We are a national law firm offering a unique collection of specialisms across the commercial, public, health and insurance sectors with more than 700 people, and offices in Birmingham, Exeter, London, Manchester and Nottingham. As one of the leading education firms in the country, our track record in working in the education sector goes back over ten years and we have an established client base of more than 1000 education organisations. Our expert team offer a unique range of education advisory services including HR & employment, pastoral, health & safety, governance, company secretarial, property and construction, tax and project management, all underpinned by our reputation as independently recognised legal experts. Browne Jacobson was the winner of ‘Legal Advisors of the Year to education institutions’ at the Education Investor Awards 2013 and is named in legal directories Chambers and Legal 500 as one of the leading law firms nationally advising the education sector. If you wish to find out more please visit our education portal – www.education-advisors.com. The information and opinions expressed in this report are no substitute for full legal advice. It is for guidance only and illustrates the law as at the published date. © Browne Jacobson LLP 2014 – The information contained within this report is and shall remain the property of Browne Jacobson.
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page foreword title Mar k B lo is Until relatively recently, local authorities have more or less universally performed the ‘middle tier’ role in the education system, acting as an intermediary tier between schools and central government. However, the role of local authorities in the oversight and running of schools in the last 15 years has been eroded first via the rapid expansion of more autonomous forms of schools and most recently with the rise of academies and free schools. Academies in particular have significantly altered the education landscape, with funding agreements replacing the traditional relationship between schools and local authorities for increasing numbers of education providers. This has led to a confusing middle tier occupied by local authorities, academy chains, sponsors and trusts, described by one commentator as “dysfunctional and bedevilled by a lack of trust between ministers, local authorities and school leaders”. Some, including the Local Government Association, would argue that recent issues surrounding school accountability in Birmingham are an example of what can go wrong under the current arrangements.
need a middle tier between schools and the ‘centre’ to perform a strategic role and strengthen delivery across the whole system so that it works in the best interests of local children. McKinsey’s second major report on school systems, How the World’s Best Education Systems Keep Getting Better observed that a “mediating layer” play a critical role for three reasons: they can provide targeted support to schools; act as a buffer between central government and schools; and enhance collaborative exchange between schools. Against that background, the term ‘middle tier’ has featured prominently in recent discourse on education policy and a number of reports have appeared from a variety of bodies exploring who or what should constitute the middle tier. Across the sources there is a general consensus that a new form of middle tier is required, with the debate concentrating on what form it will take. Currently, the majority of proposals build on the importance of a strategic commissioning role concentrating on school improvement.
The most recent contribution to the debate has been David Blunkett’s report Putting Students and Parents Most would acknowledge that there are challenges First, on behalf of the Labour Party; the ‘middle tier’ emerging as a result of the increasingly atomised schools question therefore now looks set to be a key education system and the overall coherence of the system is policy issue in the run up to the General Election in May becoming more strained with each new academy. 2015. This Browne Jacobson report seeks to consider the current thinking on the main proposed solutions to this Moreover, international evidence suggests that in order important issue. to achieve sustained improvement, education systems
Mark Blois partner, education team 0115 976 6087 mark.blois@brownejacobson.com
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on good authority... The erosion of the role of local authorities in the oversight and running of schools in the last 15 years has been significant. Notwithstanding this there have been a number of reports making the case for local authorities to maintain a long-lasting and fundamental role in the middle tier of the future, albeit that this role would not resemble their historic local government role. An evolving role For example, research by the Local Government Information Unit (LGiU), the London based local government think-tank, concluded in 2012 that local authorities (LAs) were seen by many as the “best-placed to act as middle tier”. In the same year the ADCS report, The Missing Link, identified the risk that as schools become more autonomous, they will be unwilling to take part in school-toschool support, without some form of commissioner level to broker it. The report saw this significant brokerage role between the potential players in school improvement as a key feature of future LAs. Local authorities are best placed to act as a ‘communications buffer’ between central government and schools which is essential if improvements are to be shared and integrated across schools, the report concludes. Nonetheless concerns remain, not least amongst local authorities themselves. An ADCS report, The Future Role of the Local Authority in Education, noted that many local authorities are feeling ‘shell shocked’ by the pace of change whilst the final report from the ISOS Partnership into the evolving role of the local authority in education, Local Authority Role in Education, stressed the anxiety levels amongst LAs as to whether they will continue to have sufficient capacity to effectively support and challenge their maintained schools, given reductions in staff and funding. The SOLACE report, Filling the Gap, identified the importance of a middle tier at local level to provide effective scrutiny and was in favour of a “mixed economy of scrutinisers” but within that it is suggested that the LA’s role in improving school standards should be to actively seek out the opinions of parents, carers and children and empower them to take action in supporting or challenging their school when issues arise. The report emphasises the contribution that LAs can make as convenors, facilitators and enablers, creating the environment for others to succeed. It states that “councils... are no longer in the business of directly pulling levers; instead, we relish the opportunity of working alongside children, young people, parents, carers, schools (including academy sponsors and other relevant parties) and local communities as genuine, helpful and trusted partners... adding value in an unobtrusive way”.
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maintained schools Department for Education
Local Authorities
Maintained Schools
academies and free schools Department for Education
? Academies and Free Schools
The SOLACE report also acknowledges that although LAs should act individually in fulfilling their overarching championing roles, for school improvement in particular there will need to be some local-national collaboration with central government, other LAs, academy sponsors and other relevant bodies in specific areas, in order to ensure that a consistent approach is applied. The report recognised that it may take time before this system is fully integrated and all bodies are able to work together effectively. Enablers, not providers The most recent examination of the role of local authorities within the middle tier debate was the Education Select Committee’s 2013 report, School Partnerships and Co-operation, which commented that the majority of their witnesses pointed to the unique position of local authorities. In particular the Local Government Association informed the Select Committee that “the councils we have spoken to see a continuing council role in holding school improvement partnerships to account, backed by a continuing council role in tackling underperforming schools. The importance of this ‘convening’ and ‘accountability’ role for councils has been underscored by Ofsted’s decision to inspect council school improvement services”. The Select Committee concluded that local authorities still have a critical role to play in a school-led improvement system, in particular through creating an “enabling environment” within which collaboration can flourish. They welcomed Ofsted inspection of local authorities’ school improvement services which they felt was acting to highlight the importance of this role and they were also supportive of the new system’s recognition that the expertise lies within schools but with local authorities as still part of the picture. However, although the aforementioned ISOS Partnership report had called upon LAs to “seize the agenda, rather than be apologetic and wait for instruction”, the Select Committee echoed the call made previously in the ADCS report for the Government to clarify LA powers to intervene in both maintained schools and academies in order to ensure that standards are sustained. In its response to the Select Committee the Government argued that within a system of increasing school autonomy it was important that local authorities have considerable flexibility as to how they fulfil their statutory responsibilities to promote high standards in primary or secondary education and that statutory guidance already set out the local authority’s role in relation to schools that were causing concern.
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are no “ councils... longer in the business
of directly pulling levers; instead, we relish the opportunity of working... as genuine, helpful and trusted partners... adding value in an unobtrusive way.
SOLACE report
”
Clarifying expectations The Government has subsequently gone some way to clarifying its expectations of local authorities in relation to school improvement in its consultation on Savings to the Education Services Grant (ESG) for 2015-16 which reveals the intention to reduce ESG funding by £15 per pupil from September next year. The consultation stresses that while local authorities have a duty to promote educational standards, they need to do so in the context of the increasing emphasis on school-to-school support and the direct accountability of academies and free schools to the Secretary of State. The Department for Education’s (DfE) expectation is therefore that schools should take greater responsibility for their own improvement, leaving local authorities to focus on their statutory functions in relation to maintained schools and that as such local authority statutory functions do not now require a highly resource intensive school improvement service. The DfE view is that local authorities who are effective as ‘champions of children and parents’ will be those who: • understand the performance of maintained schools in their area, using data to identify those schools that require improvement and intervention; • take swift and effective action when failure occurs in a maintained school, using Warning Notices and IEBs whenever necessary to get leadership and standards back up to at least ‘good’; • intervene early where the performance of a maintained school is declining, ensuring that schools secure the support needed to improve to at least ‘good’; • encourage good and outstanding maintained schools to take responsibility for their own improvement and to support other schools; • build strong working relationships with education leaders in their area and encourage high calibre school leaders to support and challenge others; • delegate funding to the frontline, so that as much as possible reaches pupils; • enable maintained schools to purchase from a diverse market of excellent providers; • signpost where schools can access appropriate support; • secure strong leadership and governance for maintained schools that are not providing a good enough education, by identifying and supporting successful sponsors; and • seek to work constructively with academies and alert the Department for Education when they have concerns about standards or leadership in an academy.
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Adapting to change Recent events in Birmingham have prompted renewed calls from the Local Government Association (LGA) to re-empower LAs in education, with their chair stating that “councils... stand fully prepared... rather than creating new local bodies to provide oversight, the barriers to council intervention should be removed immediately so that councils can use their vast experience, integrity and desire to improve the system”. Specifically the LGA in July 2014 called for the current two tier system of accountability to be streamlined via the creation of local ‘education trusts’. It is envisaged that these education trusts, which would be accountable to local authorities, would be set up to include all schools, including academies and free schools. Each trust would develop a school-to-school improvement programme that would enable ‘good’ and ‘outstanding’ schools to support each other to maintain and improve standards, freeing up Ofsted to focus on just those schools that are struggling. However, within days, Ofsted Chief Inspector Sir Michael Wilshaw responded to the LGA’s proposal by telling the Association of Directors of Children’s Services (ADCS) annual conference that “local authorities... are drinking in the last chance saloon in relation to their role and function to raise standards in our schools”. In the current mixed economy educational landscape it is probably impractical for LAs to be given a universal strategy for the future, as their current scope is likely to vary hugely across the country; some areas have experienced a rapid increase in academy schools whereas for others the rate of change has been far less dramatic. However, if LAs adapt to changes in the education system by ensuring they are high quality, flexible and focused it is hard to disqualify them as a potential candidate for a role in the middle tier, especially considering their local knowledge and existing relationships with schools.
barriers to council intervention “ the should be removed immediately so that councils can use their vast experience, integrity and desire to improve the system
”
Cllr David Simmons, Chair of the LGA’s Children and Young People Board, Local Government Association
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The evolving role of the Local Authority in education
then • locally responsible for education • distribution and monitoring of funding • co-ordination of admissions • direct employers of all staff in community schools • owners of community school land and premises.
now • oversee and run maintained schools • create a collaborative environment • promotion of high standards • secure strong leadership • work constructively with academies.
a changing of the guard? As local authorities lose capacity and funding, as well as the power to direct autonomous schools, there has been an alternative body of opinion develop that decision making should lie closer to academies and that those who have a track record of leading good schools should have a stronger role in shaping the system. This has led to calls for an alternative ‘middle tier’ to, a greater or less extent, take the place of local authorities specifically in the form of school commissioners. Regional commissioners • ensuring that there are enough high-quality sponsors The DfE itself aims to implement from September 2014 a to meet local need system of Regional School Commissioners (RSCs) and has • taking decisions on changes to open academies, appointed eight commissioners to hold a ‘middle tier’ including changes to age ranges, mergers and role, acting as a link between the DfE and academies or changes to multi-academy trust arrangements, as free schools. well as changes to admission arrangements. Under this model, ultimate accountability will remain with the Secretary of State but in what the DfE describes as “an important shifting of operational decisionmaking” the operational roles of the DfE and Secretary of State will pass to the regional commissioners who will continue to exercise these bodies’ existing powers in relation to academies.
Democratic accountability Part of the rationale behind the RSC policy is to allow decisions about academies to be taken at a level closer to the academies themselves, and to restore some of the local accountability which has hitherto been missing from the academy programme. Hence in each region, commissioners will be assisted by a Headteacher Board (HTB) of five to six outstanding local education leaders Specifically the role of the RSCs will include the the majority of whom will be elected by their peers. following functions: Members of the HTB will be current headteachers of outstanding individual academies, or recent ex-heads • monitoring performance and prescribing intervention (within the last two years) of academies which were to secure improvement in underperforming rated outstanding at the time they left their headship. academies and free schools All academy headteachers in each region will be eligible • taking decisions on the creation of new academies to vote. There will be elections in each region during the and making recommendations to ministers about summer of 2014. free school applications
Department for Education (DfE) and Secretary of State Operational role
Ultimate accountability
8 x Regional School Comissioners (RSC)
Regional Headteacher Board (HTB)
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Academies and free schools
Alternative solutions The DfE’s is only one version of the school commissioner solution to the middle tier question and a number of reports have proposed that school commissioners should not be confined to only academy schools. Rick Muir, Associate Director at the Institute for Public Policy Research (IPPR), has argued for local commissioners of schools to be appointed by the LA or elected mayor. These would commission (but not run) all schools in their area and focus on school improvement, acting as a mediating layer for schools that are not part of academy chains (which would provide their own separate support). The schools commissioner would then have the power to intervene if a school underperformed, ultimately by appointing a new head and governing body. Muir argues this would help them to improve through collaboration, promoting the professional development of teachers and ensuring schools respond effectively to national policy changes. One of the most comprehensive visions for the role of school commissioners is that presented by Robert Hill in his report for the RSA. Hill argues that central government is the body with the democratic mandate to set policy priorities and exercise overall accountability. As such the DfE should set the broad framework for educational policy, including the school accountability framework. However, Hill argues that an increasingly academised education system should not be managed from the centre and hence the DfE should no longer have responsibility for the implementation and monitoring of school improvement. Specifically as part of this downsizing, he proposes that the DfE would no longer enter into funding agreements with academies. Instead an independent body would be created to establish and police the regulatory framework and education would become a function of sub-regional groups, led by a directly elected Mayor or other political leader, who would then appoint commissioners.
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need devolved structures “ we that do not rely on a topdown approach with the Secretary of State in charge of thousands of funding agreements with individual schools and intervention from the top.
”
David Blunkett MP, Review of Education Structures, Functions and the Raising of Standards for all – Putting Students and Parents First
The role of Hill’s commissioners would be to develop strategies for the sub-region for school improvement, leadership and staff development and progression routes. All strategies would be developed in conjunction with school leaders. The commissioners would also take responsibility for co-ordinating place planning across the sub-region, commissioning specialist services for vulnerable children, co-ordinating school competitions, challenging LAs in their approach to the schools in their area, supporting teaching schools and academy chains to improve schools and if necessary, determining when a school is performing so poorly that it should be taken over by an alternative provider. The most recent proposals for the adoption of an alternative ‘middle tier’ in the form of school commissioners has come in David Blunkett’s Review of Education Structures, Functions and the Raising of Standards for all – Putting Students and Parents First, published in May 2014 as part of the Labour Party’s policy review process ahead of the 2015 General Election.
Blunkett has called for the creation of a new executive post namely Directors of School Standards (DSS). DSS’s would be statutory appointments on fixed term five-year renewable contracts, made from a shortlist of candidates approved by the Office of Schools Commissioner.
Services in the relevant LAs but Blunkett makes explicit that he envisages that the DSSs would provide the kind of objective voice that historically was offered by the local Direct of Public Health rather than a return to the former Chief Education Officer position and the structures that underpinned it.
The DSS are the core to a new structure for how different categories of state schools, with separate forms of accountability, should be co-ordinated in local areas. Specifically, Blunkett’s proposal is to devolve power over academies and free schools to a network of DSS, with the presumption being for LAs to join together to appoint a shared DSS across a local area or sub-region.
The DSS would also work closely with a local ‘Education Panel’, which would include representation from schools in the area, parents and relevant LA representatives. The ‘Education Panel’ would work with the DSS on the development of a long term strategic plan for education and ensuring major commissioning decisions are taken in line with that plan.
However, critically, and in contrast with the DfE’s policy for RSC, the remit of a DSS would be to have responsibility for working at the local area level to drive high education standards in all schools whatever their status, including facilitating intervention to drive up standards wherever poor performance exists, with that intervention drawn from the DfE, Ofsted, and the relevant diocesan and LAs. All types of schools would be required to provide any data requested and to cooperate fully with the DSS.
The Shadow Secretary State for Education, Tristram Hunt has recently confirmed that Labour will be taking forward Blunkett’s recommendation for DSS, attributing this policy as being a major transfer of power away from Whitehall as part of Ed Miliband’s wider vision of empowering local communities by decentralisation.
The DSS would work in collaboration with, and as a partner of, the Directors of Children and Young People’s
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As such, the battle lines have now been defined by both main political parties on the ‘middle tier’ question. While not necessarily a vote-winner on the frontline, this critical issue for education professionals looks set to continue to be a key policy issue in the run up to the May 2015 General Election.
bibliography ADCS; The future role of the local authority in education, April 2012 ADCS, The Missing Link: The evolving role of the local authority in school improvement, April 2012 ATL; Middle tier - a view from the profession, 2012 Blunkett, David; Review of education structures, functions and the raising of standards for all - Putting students and parents first, April 2014 Dunford, John; School improvement and the middle tier, April 2012 Hargreaves, David; Creating a self-improving school system, July 2010 House of Commons Education Select Committee; School Partnerships and Co-operation, November 2013 ISOS; Local authority role in education (final report), July 2012 LGA; Local freedom or central control I and II, July 2010 /June 2011 LGA; Investing in our nation’s future: the first 100 days of the next government, July 2014 LGiU, NUT & UNISON; Should we shed the middle tier?, Sept 2012 McKinsey & Co; How the world’s most improved school systems keep getting better, November 2010 Muir, Rick; The missing middle, April 2012 NCSL; The growth of academy chains: implications for leaders and leadership, January 2012 NFER; What works in enabling school improvement? The role of the middle tier, April 2013 Parkin, Terry; Do We Need a Middle Tier in Education?, FORUM Vol 54, Number 1, 2012 Rogers, Martin/ADCS; Are we in danger of shedding the middle tier? – a think piece, September 2012 RSA/Hill, Robert; The Missing Middle: the case for school commissioners, July 2012 SOLACE; Filling the Gap: The Championing Role of English Councils in Education, May 2012
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