Proposed legislation to drive up education standards could put local authorities on a collision course with Government over which of them takes the initiative in tackling 'coasting' schools.

The draft Education and Adoption Bill intends to speed up the process of improving failing schools. Under the proposals, local authorities and governors will be actively required to take steps to convert schools to academies, whilst the Secretary of State’s (SoS) power to intervene directly will also be greatly extended.

The overall aim is to deliver greater powers to tackle underperformance and to drive wider improvements by subjecting 'coasting' schools to the same measures as underperforming ones.

The Bill would create the additional 'coasting' category of maintained schools eligible for intervention under the Education and Inspections Act 2006. The definition for 'coasting' is not yet clear. A new power would enable the SoS to define what coasting means by way of regulations.

A school would be eligible for intervention if notified by the SoS that it is coasting and that notification is not changed following actions by the school. How and by whom such notifications are made is not made explicit in the Bill although these are likely to be made via the Regional School Commissioners.

There is no provision in the draft Bill for notification to local authorities which appears odd given their existing powers to intervene once such a notification has been made. Some proposed amendments suggest further regulations to establish the procedure for notification.

The Department for Education (DfE) has indicated what it means by 'coasting' and draft Regulations have been published to assist the Bill’s progression through Parliament. These draft Regulations state that schools eligible for intervention will be those that fall below the new 'coasting' level for three years. Support an informal basis to improve standards could start earlier to prevent schools from being labelled as coasting.

Currently the level for secondary schools is set at ‘60% of pupils achieving five good GCSEs or an above average proportion of pupils making acceptable progress’. From 2016, a new accountability measure will be introduced, Progress 8, measuring progress made by pupils from when they join secondary school until their GCSEs. At primary level, the definition will apply to schools which have seen ‘fewer than 85% of children achieving an acceptable secondary-ready standard in reading, writing and maths over three years, and which have seen insufficient pupil progress’.

Once classified as eligible for intervention, the same powers will be available to local authorities and the SoS as for other schools eligible for intervention (for example the establishment of an interim executive board, appointing further governors, entering into other arrangements for collaboration or advice, suspend budgets and the SoS’s discretionary power to convert them into an academy).

How the overlapping (and increased) powers of the SoS and those of local authorities will interact in practice has yet to be defined. There is provision for notification to the other before any power is exercised, but it is not stated if there will be any consultation between the two before deciding a course of action or if the SoS will go over the head of local authorities.

Under the new provisions if the SoS notifies a local authority of an intention to intervene, local authorities lose their own powers. How far will the SoS consider alternative steps or a local authority’s views before exercising discretionary power to convert a school into an academy? There have been indications that schools could submit improvement plans and only if these were not credible would academy solutions be considered.

Once an academy order is made for coasting schools, the local authority would have to take reasonable steps to facilitate the conversion and could even be directed to take certain action.

The draft Bill will be further debated as it progresses through Parliament, giving local authorities the opportunity to lobby their MPs before measures are passed into law. Any new arrangements for intervention must meet the objectives of improving standards of education.

Tiffany Cloynes is partner at Geldards LLP