Can the DfE force schools to academise?

11th August 2021

Usually, when schools convert to academy status, this is a joint decision supported by both the governing body of the school in question, and the academy trust into which the school will convert.

Sometimes the decision to convert is entirely voluntary, and sometimes schools which are assessed as requiring improvement are made the subject of an academy order by the Department for Education (DfE). In most cases, this is a decision supported by all parties involved.

But what happens when a school subject to an academy order does not want to convert to academy status? Can the DfE force the school to academise against its will?

The case of R v Governing Body of Yew Tree Primary School

In July 2021, Yew Tree Primary School (the School) became the first school in the UK to win an appeal against being forced to convert to academy status.

The School was made the subject of an academy order after being rated “Inadequate” by Ofsted in January 2019. The Governing Body (GB) then took significant measures to improve to the School, and by September 2019 its rating was upgraded to “Requires Improvement”. Due to COVID-19 restrictions preventing Ofsted inspections, the School has not been rated since, but the GB and its local authority believe that it were it to be inspected, the School would now be rated “Good”.

On the basis that the School had made significant improvements and would no longer need the support of an academy trust, the GB applied to have the School’s academy order revoked. In December 2020, the Education Secretary refused to do so, on the basis that the School was unable to provide a satisfactory Ofsted rating to demonstrate that the academy order was no longer required.

The Decision: To Reverse the Academy Order

The GB took its case to the High Court, bringing a judicial review against the Education Secretary to appeal the decision not to revoke the academy order. It argued that:

  1. Despite the lack of Ofsted inspections, there was clear evidence of sustained improvement at the School;
  2. The circumstances were exceptional, in that COVID-19 restrictions prevented Ofsted inspections from taking place; and
  3. The decision of whether to revoke the academy order should have been made on the basis of the actual performance of the School, not simply the results of its Ofsted inspections.

The deputy High Court judge, Gavin Mansfield QC, found in favour of the School, ruling that the Education Secretary’s decision not to revoke the academy order was “irrational” and did not take sufficient account of the progress that the School had made since January 2019.

In his judgment on 22 July 2021, the judge said that there was “clear evidence … of both continued efforts to improve and success in achieving those improvements”, and that the Education Secretary’s concern must be with “the substance of the performance of the school, not with whether there has been a formal grading by Ofsted”. The judge also expressed concern that the Education Secretary had applied insufficient weight to the evidence provided by the local authority for the School’s improvement, a decision which appeared to have been swayed by a perceived lack of support for academisation from the local authority.

In response to the court’s decision, a DfE spokesperson has said: “We are now considering the next steps … which may include appealing the court’s decision or assessing a new application from Yew Tree to set aside their academy order.”

Implications for the Education Sector

Sponsored academy conversions can be a positive step for many schools. Where a school is struggling and lacks the resources to invest in its improvement, the support of a strong academy trust can be fundamental in helping the school improve its performance.

However, there is no one-size-fits-all solution, and where a school is strongly opposed to academy conversion (as it was in this case), it will be important to consider whether academisation is the right way to help that school improve. Where such a school is able to demonstrate significant improvement without the support of an academy trust, it would seem reasonable to presume that any outstanding academy order should be revoked.

This case was in some ways exceptional, in that the School was unable to demonstrate its improvement in the usual way (i.e., via a successful Ofsted inspection). Had the School been able to do so, the Education Secretary might have revoked the academy order in December 2020, and this appeal would not have been necessary. In a narrow sense, this case raised (and answered) the question of what kind of evidence the Education Secretary is required to take into account when considering whether to revoke an academy order.

However, there is a wider question here: Should a school’s decision to convert to academy status ultimately lie with the DfE, or with the governing body of the school involved? Though unusual, this will not be the only instance where a school objects to sponsored academy conversion, and if governing bodies feel that they may be able to prevent an unwanted sponsored conversion by appealing the decision in the courts, they may be more likely to do so.

It will therefore be interesting to see whether this case is appealed, and whether similar cases are brought to the courts in coming years.

How can Blake Morgan help?

We have a dedicated Academies team at Blake Morgan, which specialises in assisting schools, academy trusts and local authorities with all aspects of academy conversions and transfers. If you have any queries about the topics discussed above, or there are any other issues we can help you with, please do get in touch with Laura Sherratt or Kirsteen Hook.

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