All maintained schools in England are required to have a complaints procedure. For maintained schools this legal requirement is set out under section 29 of the Education Act 2002. Where complaints cannot be resolved at a local level, it is intended that the complaint may be referred to the Secretary of State.

The Secretary of State has direction making powers where he has received a complaint, but also where he has not, under sections 496 or 497 of the Education Act 1996.    

Section 496 provides that if the Secretary of State is satisfied that a local authority or governing body of a maintained school have acted, or propose to act, unreasonably with respect to the exercise of any power conferred, or the performance of any duty imposed by or under this Act, he may give such directions in relation to the exercise of any power conferred, or the performance of any duty imposed, as appear to him to be expedient. 

‘Unreasonably’ for these purposes means that the school has acted so unreasonably that no reasonable school would act. This is a high threshold to overcome.

Section 497 provides that if the Secretary of State is satisfied that a local authority or governing body of a maintained school have failed to discharge any duty imposed on them by or for the purposes of this Act, he may give a declaration that the body is in default in respect of the duty and give such directions for the purpose of enforcing the performance of the duty as appear to him to be expedient.

The reference to ‘this Act’ in both sections applies to duties and powers under the Education Act 1996 and under other Acts read as if their provisions are contained in the 1996 Act. 

In both cases the Secretary of State may act on a complaint from a third party or otherwise. 

The Secretary of State is not under a duty to intervene in every case that is brought to his attention but he must always consider whether, in light of the information provided to him by a complainant, he should exercise his powers.

The term ‘expedient’ gives the Secretary of State wide discretion whether to give a direction.  The term is interpreted by the Department as meaning of some practical value or worth; would a purpose be served; or would it be appropriate for the Secretary of State to give a direction in this particular case. 

If the Secretary of State finds it expedient to give a direction then he can only direct the governing body or the local authority in relation to the exercise of any power conferred (in the case of section 496) and for the purpose of enforcing the performance of the duty (in the case of section 497).