Date updated:

Whilst this is a policy document at this stage, and subject to further consultation, schools are advised in particular to start planning to meet the following key legal and policy changes which are almost certain to happen in the near future.

Behaviour, attendance and wellbeing

The Department for Education (DfE) “will support schools to secure the fundamentals of behaviour, attendance and wellbeing for all, driving down incidents of poor behaviour and increased absence following the pandemic.” 

The bulk of this policy emphasis is on attendance, including the following specific changes which will have to be introduced through legislation and regulation:

  • the introduction of “a minimum expectation on the length of the school week of 32.5 hours (the current average) for all mainstream state-funded schools”. Note this will not apply to specialist settings;
  • “new legislation to create new statutory guidance on attendance, including a requirement for every school to publish a clear attendance policy”;
  • “legislation to establish a register for children not in school”;
  • “new statutory expectations of local authority attendance services. We will expect

schools and local authorities to work closely with these bodies to re-engage children who are ‘severely absent’ (those missing more than 50% of their sessions in school)”.

It appears that local authorities (LAs) will in practice continue to carry the bulk of the workload regarding children absent from school, but there is no offer of further specific resources for LAs to deliver improved outcomes.

The content on behaviour is vague in pursuit of the stated objective of “High expectations on behaviour and attendance: your child will learn in a calm, orderly, safe and supportive school with high expectations for every child.”  There is recognition that “We must understand the issues underlying behaviour, including wider factors like mental health, and pay particular attention to supporting disadvantaged and vulnerable groups who have often suffered most in recent years.”  The only actual proposal is that the DfE will “revise the Behaviour in Schools guidance and the statutory Suspension and Permanent Exclusion guidance to provide more practical support to school leaders.” As part of the data driven theme of the White Paper there is reference to “an annual behaviour survey” but it is not clear yet what its actual format will be.

Overall Schools are advised to continue to prioritise attendance, and to prepare an attendance policy if they do not already have one.

Teaching Resources and School Funding

A number of support resources will be on offer but the hard requirements on schools will include:

  • the minimum school teaching week of 32.5 hours;
  • starting salaries of £30,000 for NQTs;
  • leadership-level SENCO NPQs as the mandatory qualificaiton for new SENCOs (subject to more consultattion):  this will bring further focus the long-standing variation of practice regarding inclusion of the SENCO in a school’s SLT;
  • further clarity in their contractual relationships with staff regarding tutoring.

The White Paper also contemplates pooling or ‘top slice’ mechanisms in MATs being subject to new “transparency measures [which] will ensure that it is always clear to parents how this flexibility is being used”.  Unless handled carefully this particular transparency will result in resource sapping applications to the High Court for judicial review by parents second guessing the operational decisions of MATs, which may undermine the benefits of central critical mass that the White Paper is trying to encourage. 

Educational Provision

The imbedding of tutoring in the form of “A Parent Pledge” that schools will deliver “evidence-based support if your child falls behind in English or maths” and the related requirement on schools to “tell you about their progress” could lead to a considerable increase in parental complaints. Schools should review their complaints processes to anticipate more focus on complaints regarding the detail of academic provision in the future.  The term “pledge” lacks legal clarity but is essentially a promise given by the DfE on behalf of schools who will have to deliver it. 

Related to this pledge is the White Paper’s promise that a child “will not need not need a diagnosis in order to access academic support”. This corresponds to the focus in the SEND Review, for “a clearer interaction between the SEND system and the support that should be readily available in all schools.”  The SEN Green Paper has at its core a further attempt (as was seen in 2014) to transfer some of the focus and funding from special to mainstream provision.  However at the moment this White Paper emphasies local mainstream support in “ensuring that all children and young people with SEND are able to access the right support in the most appropriate setting, including mainstream schools, in a timely manner, wherever they are in the country” whilst also pledging “new places and [to] improve existing provision for children and young people with SEND or those requiring alternative provision.”  Much will depend on how prescriptive the changes in SEN provision and funding are following the SEN Green Paper, but it is certainly clear that schools will need further to enhance their systems for the identification and early intervention regarding SEN. 

Governance:  Full academisation by 2030

There is some unusual and welcome candour in the historic assessment in this White Paper that “The system that has evolved over the past decade is messy and often confusing. Schools, trusts and local authorities have unclear – and often overlapping – roles and responsibilities.”  With an eye to the historic example of Conservative backbench revolt against a much shorter academisation timetable contemplated in Nicky Morgan’s White Paper six years ago, this White Paper gives an ample eight year period for completion of the process of finishing the role of LAs as school providers and replacing it with “A fully trust led system with a single regulatory approach”. 

There is an emphasis on safeguards for faith schools and selective schools in that process but it will be completed nonetheless and we strongly advise all schools and trusts not already in a position to align with the DFE stated policy of being in a Multi AcademyTrust (MAT) of ten schools or at least 7,500 pupils, to develop a strategic plan to get there.  Although it will not be straightfoward for the DfE to compel that outcome, its use of academy standards (see below) and likely development of more confidence in intervening in the leadership and governance of trusts measured against those standards, will probably give the DfE the legal tools to implement this element of the White Paper. 

As regards schools that are not yet academised, it may take many years for the Regional Directors to have the capacity to force their academisation (and the legal tools are not yet in prospect for that to happen, certainly for Schools rated good and outstanding by Ofsted).  However in many locations the best opportunities for collaboration in a MAT may have a limited window of availability as other schools and existing trusts engage more proactively in the process of building larger MATs in response to this White Paper.  The incentive for LAs to operate maintained schools will also continue to decline and many LAs may get to a tipping point where the White Paper option of an LA asking the DfE to academise the remainder of its schools would be taken up. 

The capacity to achieve this governance change will include LA-backed MATs “where too few strong trusts exist”.  This may be the only realistic way to academise the residual element of the large number of primary schools remaining to be academised, but throws up some very interesting practical questions about the extent of LA influence in such MATs, both at member and trustee levels. Furthermore, even if LAs give up even further the commercial and optional elements of historic LA school support services for schools when they are not maintained, LAs will still be tasked with signficiant functions such as SEN, admissions and school attendance which will result in conflicts of interest with LA backed MATs. 

There are also some interesting counterweights in this policy to try to balance out the development of fewer, larger MATs.   The White Paper is at pains to say that “While there will be no maximum size of trust, we will limit the proportion of schools in local area that can be run by an individual trust.”   Also, and crucially, there is a further assurance that “So that trusts continue to be responsive to parents and local communities, all trusts should have local governance arrangements for their schools. We will discuss how to implement this with the sector.”  Local goverance has become a critical challenge in the MAT sector and real clarity of expectation will be required from the DfE if it is not going to impede effective leadership and governance of the “critical mass” central functions in MATs that is a key objective of this White Paper.  The White Paper also contemplates “the exceptional circumstances in which a good school could request that the regulator agrees to the school moving to a stronger trust” which begs the question what agency a school (which will have no legal entiry and limited local goverance) will have at local level to make this request?  These simple statements of policy intent in the White Paper involve very complex governance issues which the DfE will need to address head on if it is to avoid undermining its intent to deliver a full academised system delivered through fewer, larger trusts.

The new role of LAs as champions of the interests of children

Although LAs will not be the commissioners or providers of schools, perhaps surprisingly their duty to plan sufficient school places will remain, and “They will determine the number of school places, including special and alternative provision places, that are needed in a locality”.   In practice they will now become completely reliant on the effectiveness of the free schools programme and the capital funding policy operated by the DfE in that role. 

However one particulary interesting aspect of this White Paper is that the freedom of schools as their own admission authoirty will be reduced to support LAs in their continued place planning and admission co-ordination roles. New legislation and a new Admissions Code will be required to implement the following power changes set out in this White Paper:

  • As yet unspecified “strengthened role overseeing local admissions arrangements”;
  • An LA’s power to object to the Adjudicator about a School’s PAN;
  • LAs to co-ordinate all in year admissions;
  • LAs to exercise “a backstop power to direct admission of a child if required”.

Unless the DfE provides very clear and effective guidance for the exercise of these powers by LAs, we anticipate considerably friction between schools and LAs over the practical reality of admissions.  In any event, schools used to controlling their own PAN and in-year admissions will need to prepare for much closer working with LAs in the future.

There will also be a policy focus on “options to reform the admissions framework, including the setting of over-subscription criteria. We will consult on a statutory framework to govern children’s movements so that all placement decisions – including about the use of alternative provision – are always made in the best interest of the child, especially the most vulnerable like children in need.”  This could lead to a very significant reversal of the longstanding policy approach of permitting considerable discretion to schools on how they proprioritise pupils when oversubscribed.  All of this is within the legal power of the DfE to change provided it carries out sufficient consultation.

Regulation of Academy Schools: the Regional Directors

Logically there will be further amendment of legislation to provide for direct legal obligations for academies in functions such as admissions, which are currently only regulated indirectly through academy funding agreeements. 

More boldly the DfE will set up a further set of standards for academy trusts.  While the White Paper talks about defining “trust strengths”, we anticipate they will be codified as legally binding standards analagous to the independent schools standards which form the basis of regulation of independent schools in the private sector. Elswhere in the White Paper it is expressly stated that “we propose to bring together both new and existing requirements on academy trusts (currently set out in legislation and funding agreements) into statutory academy trust standards. New statutory intervention powers will underpin the standards and provide a robust framework for ensuring we can tackle any trust which fails to achieve the expected outcomes by managing and governing their schools effectively. The department, through the Regions Group described below, will take a single regulatory approach to trusts.”

The vital detail will be found in the legislation imposing this system, but it is clear that the DfE’s Regional Directors will exercise signficantly extented powers over all aspects of school performance and governance, including areas such as SEN which historically have been controlled in practice by LAs.

We await with interest the futher consultation and then legislation that will be required to implement this significant White Paper.  If you have any questions about the legal issues raised by it, do contact the author of this briefing