Section 60 of the 2006 Act sets out the provisions relating to performance, standards and safety warning notices. A performance standards and safety warning notice should be used where there is evidence to justify both the local authority’s concerns and the school’s reluctance or inability to address those concerns successfully within a reasonable time frame. Before deciding to give such a warning notice, local authorities must draw on a suitable range of quantitative and qualitative information to form a complete picture of a school’s performance.
Giving a performance standards and safety warning notice
When used effectively many local authorities have found that giving warning notices has had a positive impact on schools causing concern, often providing a catalyst for more focused and appropriate action from both the leadership team and the governing body. It is expected that local authorities will use these powers on a more frequent basis prior to more formal intervention being required.
A performance, standards and safety warning notice must be given in writing to governing body of the school and must set out:
- The matters on which the local authority’s concerns are based. These should be set out in some detail and explain the facts that exist in that particular school and the circumstances which are giving the local authority cause for concern;
- The action which the governing body are required to take in order to address the concerns raised;
- The initial compliance period beginning with the day when the warning notice is given and ending 15 working days following that day, during which time the governing body are to address the concerns set out in the warning notice, or make representations to Ofsted against the warning notice; and
- The action which the local authority is minded to take (under one or more of sections 63 to 66 of the 2006 Act or otherwise) if the governing body does not take the required action.
In addition to giving the governing body the warning notice, the local authority must also give a copy to the headteacher; and in the case of a Church of England Church school or a Roman Catholic Church school, the appropriate diocesan authority, and in the case of a foundation or voluntary school, the person who appoints the foundation governors.
All warning notices must be copied to Ofsted at the same time using the email address: warningnotices@ofsted.gov.uk
Where a performance standards and safety warning notice has been given which has not been complied with to the satisfaction of the local authority within the compliance period, the local authority must also give the school reasonable notice in writing that they propose to exercise one or more of their powers under Part 4 of the 2006 Act. When a school has failed to comply with a warning notice and the local authority have also given a further written notice, a school is eligible for intervention.2
2 See section 60(1)(e) of the Education and Inspections Act 2006
Making representations against the warning notice
The warning notice must state that the governing body of a school can make representations in writing to Ofsted. The 2006 Act does not specify the grounds for making representations, but it could be that the school believes that the local authority has:
- Given the warning notice without sufficient objective evidence.
- Proposed action that is disproportionate to the scale of the issues facing the school.
The representations must be made in writing within 15 working3 days of receipt of the warning notice. It should be sent to warningnotices@ofsted.gov.uk and copied to the local authority.
Ofsted must consider any representations and may confirm the warning notice or not. This will usually be within a period of 10 working days after receipt of the representations, although this is not set out in the legislation.
If Ofsted confirms the warning notice, the school is eligible for intervention after 15 working days beginning with the day on which Ofsted confirms the warning notice.
Irrespective of whether the governing body has made representations to Ofsted, the governing body may make a complaint to the Secretary of State under section 496 and/or 497 of the Education Act 1996. This enables the Secretary of State to make a direction, if expedient to do so, where he is satisfied that a local authority have acted, or are proposing to act unreasonably with respect to exercising of a power or performance of a duty under the 1996 Act, or certain other acts which are read together with the 1996 Act (including the 2006 Act), or where the local authority have failed to discharge a duty.
3 Working day does include the school holidays. See the definition in section 60(10) of the Education and Inspections Act 2006
Power of the Secretary of State to direct the local authority to consider giving and to give a warning notice
The Secretary of State has the power to direct a local authority to first consider giving a warning notice in specified terms and then, to direct the local authority to give a warning notice in those terms where a local authority have decided not to do so.
A direction to give a performance standards and safety warning notice in the terms specified may be given if the Secretary of State thinks there are reasonable grounds for the local authority to do so and:
- the local authority have not given a warning notice to the governing body; or
- the local authority have done so, but in inadequate terms; or
- the local authority have given a warning notice to the governing body but Ofsted have failed or declined to confirm it; or
- the school has become eligible for intervention, but the period of two months following the end of the compliance period has ended.
The local authority may then decide to give the warning notice to the governing body in the specified terms and must give the Secretary of State a written response to the direction confirming this within 10 working days beginning with the day on which the direction was given. They must then give a performance standards and safety warning notice to the governing body within five working days from the day on which a response is given to the Secretary of State and on the same day give the Secretary of State a copy of the notice.
If the local authority decides not to give a warning notice, then they must respond to the Secretary of State within 10 working4 days, beginning with the day on which the direction was given setting out the reasons for that decision. If having considered these reasons, the Secretary of State believes that a warning notice is still necessary then the local authority will be directed to give a warning notice in those specified terms. The local authority must then give this performance standards and safety warning notice to the governing body within five working days beginning with the date when the direction is given.
Once this warning notice has been given, the school has 15 working days to comply with the terms of the warning notice or make representations to Ofsted as with any other warning notice given. The local authority must judge whether the school has complied with the terms of the warning notice. If the local authority concludes that the school has failed to comply with the warning notice and has also given written notice to the governing body that they propose to exercise one or more of their intervention powers, then it is “eligible for intervention” as set out in Part 4 of, and Schedule 6 to, the 2006 Act, and the intervention powers of the Secretary of State and the local authority may be exercised.
The Secretary of State may also request Ofsted to inspect and report on a school where there are serious concerns under provisions in the Education Act 2005.
4 The 2006 Act states that “working day” means a day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 (c.80) in England.
