Interventions: Guide for Schools

This page provides information on statutory interventions that may be applied to schools, under part 7A of the Education Act 1989, to address risks to the operation of individual schools or to the welfare or educational performance of their students.

Background

The current legislative framework was introduced in October 2001 and brought all statutory interventions under one part of the Education Act. It allows a prompt, flexible and appropriate response to the varying needs of schools where there are reasonable grounds to believe that the operation of the school, or welfare or educational performance of the students is at risk.
Over the years since the legislation was first introduced the Ministry has refined and developed its application practice.

Range of Interventions

Part 7A of the Act provides a range of six interventions as follows:

the Secretary for Education requiring a school's board of trustees to provide specified information [section 78J];
the Secretary for Education requiring a board of trustees to engage specialist help [section 78K]. The specialist help may be particular persons or organisations, or types of persons or organisations;
the Secretary for Education requiring a board of trustees to prepare and implement an action plan to address specific issues [section 78L];
the Minister of Education temporarily removing specified power(s) of the board of trustees and directing the Secretary to appoint limited statutory manager(s) for a board of trustees while the board remains in existence [section 78M];
the Minister of Education dissolving a board of trustees and directing the Secretary to appoint a commissioner to replace the board [section 78N(1) and (2)]. All components of the board's responsibilities are removed from the board, the board is replaced by the commissioner, and the roles and responsibilities of governance are temporarily vested in the commissioner; and
the Secretary for Education dissolving a board of trustees and appointing a commissioner to replace the board [section 78N(3)], if any of the following applies:
- the board has not held a meeting during the previous 3 months;
- so many casual vacancies have arisen that there is no longer any member of the board who is eligible to preside at meetings of the board;
- the result of an election of trustees is that the board has fewer than 3 trustees elected by parents;
- an election of trustees has not been held as required by this Act; and
- it is impossible or impracticable to discover the results of an election of trustees.

The set of graphics provided as a download at the bottom of this page is intended to give a pictorial representation of the difference in application of statutory powers between section 78K (specialist adviser), section 78M (limited statutory manager) and section 78N (dissolution of the board and appointment of a commissioner).
The six interventions are applied at the governance level. While interventions are formally applied at the governance level, they commonly influence issues at a management level through application of board policy, direction to board employees, and performance management. These interventions are used only in schools where there are reasonable grounds to believe there is risk to the operation of the school, or the welfare or educational performance of the students.
The level of evidence-based identified risk will determine the level of intervention applied. The aim is to intervene no more than is necessary, at the same time as addressing the risks promptly and effectively to reduce the likelihood of more extreme and expensive interventions at a later stage.
Interventions can be applied concurrently, except when a commissioner has been appointed to replace the board (under section 78N). In that case, any additional expertise required can be contracted in by the commissioner at her/his discretion.

Governance versus Management

Sections 75 and 76 of the Education Act 1989 provide:
There is not a specific statutory definition of respective governance or management roles, and where governance ends and management begins. The successive of that governance/management relationship often relies on implied duties such as trust and confidence, and fair and reasonable treatment. The relationship also relies on a mutual obligation to act in good faith. In addition, the board is required by law to act as a good employer.

Triggers for Interventions

To request information from the board under section 78J, the Secretary need only have reasonable grounds for concern about the operation of the school, or the welfare or educational performance of its students. The other interventions may be triggered when there are reasonable grounds to believe that there is a risk to the operation of the school, or the welfare or educational performance of its students.
The Ministry may be alerted to risk by an Education Review Office (ERO) report, by media reports, by public concern, or by discussion and interaction with the board and principal of the school in question, the New Zealand School Trustees Association (NZSTA) advisers, or Post Primary Teachers Association (PPTA) and/or New Zealand Educational Institute (NZEI) field officers.
It is also appropriate for a board or, in the case of an integrated school, the school's proprietors, to request the use of an intervention to resolve a problem at its school. In a number of cases, boards have requested statutory support to assist with specific risks, for example financial or employment issues.
Evidence of risk to the operation of a school includes such factors as problems with financial management, personnel management and/or asset management, inadequate planning, policy setting and reporting to parents, poor community relationships, and failure to comply with legislation.
Evidence of risk to student welfare includes inadequate policies and practices to ensure student welfare, health and safety, persistently high truancy rates, and high suspension, exclusion and expulsion rates. On occasions where a school experiences a critical incident relating to student welfare and safety, it may be considered prudent to use a statutory intervention to assist with managing the crisis.
Evidence of risk to the educational performance of the school's students includes such matters as inadequate curriculum management, absence of adequate policies and processes for student assessment, staffing issues that may influence student performance, persistently low student achievement in relation to comparable schools, and low achievement of particular groups within the school.

Process

When evidence of concern or risk is identified at a school the Ministry will consider the most appropriate action from a range of options, including informal and formal school support. Informal support may be provided through professional development, or low-level support and advice. The Ministry may provide `brokerage' to coordinate a range of support options, or assist with small amounts of funding to enable a school to access professional advice or services to meet a specific need. A further option is for the Ministry and a school board to agree formally that certain actions will be undertaken. In some circumstances this formal action may also involve funding assistance from the Ministry. The concern or risk is regularly monitored by the Ministry during this period.
Sometimes initial evidence of concern or risk may come through direct reports to the Minister's office from groups such as education sector agencies, the public, and/or the media, and the Minister then requests that the Ministry scope all the issues and recommend intervention options.
In some cases the board of a school, or in the case of an integrated school, the proprietors, may request a statutory intervention.
Wherever the concern or risk is identified the local office of the Ministry will begin by scoping the identified and related issues. This is usually done by working with the board and senior management of the school, and often also with local NZSTA advisers, PPTA/NZEI field officers, ERO and relevant education sector agencies.
The Ministry uses this information, together with tracking of identified school support risk factors such as financial status, staff turnover, school roll numbers, suspensions/exclusions/expulsions numbers and community complaints, to determine the scope and level of a proposed intervention.
Before the Secretary appoints a limited statutory manager or a commissioner to an integrated school the proprietors must, if practicable, be consulted. Before applying any intervention to a kura kaupapa Maori operating in accordance with Te Aho Matua, Te Runanga Nui must be consulted.
Where ERO finds serious cause for concern it is likely to recommend that a statutory intervention is considered. The Ministry ensures that its work is coordinated with and recognises the actions required by ERO.
The Ministry's scoping of the relevant issues almost always involves the board of trustees of the school. Although the legislation does not require that the board is first consulted, experience has shown that a board that has been included in the consideration of risk and appropriate intervention options, and the consideration of recommended appointees, will be more likely to work co-operatively with the intervention. However, in some serious situations, particularly where the Ministry feels swift action is needed, consultation may be brief or limited in its scope.
Local and national office Ministry staff work closely together in developing the documentation necessary for recommendation of a statutory intervention. Depending on the nature and complexity of the situation, several divisions of the Ministry may contribute to the final documentation, but it will always be managed by National Operations Division. When relevant the Ministry documentation may include reference to information from other education agency sources such as the New Zealand Qualifications Authority (NZQA) or ERO.

Application of Statutory Interventions

The Ministry recommends a statutory intervention for application by either the Minister of Education or the Secretary for Education. On occasions, because of the complexity of the situation, the Ministry has recommended intervention options for the Minister with associated risks and benefits for each, so that he may make the choice for the appropriate level of intervention without recommendation from the Ministry. This is most common in situations where there are multiple areas of high risk.
26. The Secretary for Education authorises statutory interventions under sections 78J (requirement to provide information), 78K (specialist adviser), 78L (action plan) and 78N(3) (dissolution of the board and appointment of a commissioner when any of the five stated constitutional situations arises).
The Minister of Education authorises statutory interventions under sections 78M (limited statutory manager) and 78N(1) (dissolution of the board and appointment of a commissioner).
In all statutory interventions it is the Secretary who appoints the statutory appointees. The difference is that under sections 78M and 78N(1), where the Minister has the authority to apply the intervention, the Minister directs the Secretary to make the appointment.

Notification of Statutory Interventions

When either the Secretary or the Minister authorises a statutory intervention, this is notified using specific methods for specific interested parties. Legislation requires specific notification for each level of intervention, and common courtesy for optimum success of the intervention requires additional methods of notification.
When the Minister authorises a statutory intervention under sections 78M and 78N(1), he signs a notice which is published in the New Zealand Gazette. In these two instances the Minister is notifying the intervention and directing the Secretary to appoint either a limited statutory manager (s78M) or a commissioner (s78N(1)). The Secretary appoints the limited statutory manager by signing a letter to the board and to the appointee advising them of the Minister's decision and the role of the appointee. The Secretary appoints the commissioner, under section 78N(1), by signing a notice which is published in the New Zealand Gazette, and by signing a letter to the board and to the appointee advising them of the Minister's decision and the role of the appointee.
When the Secretary authorises a statutory intervention under sections 78J, 78K, and 78L he signs a letter to the board which serves as the official notice of the application of the intervention. Under section 78K (specialist adviser) he also signs a letter to the appointee advising them of his decision requiring the board to engage their services. Only when the Secretary authorises a statutory intervention under section 78N(3), does he sign a notice which is published in the New Zealand Gazette. In addition he signs a letter to the board and to the appointee advising them of his decision and the role of the appointee.
Included with the letter to the board of trustees is an information sheet describing the intervention that has been applied, in a form that can be shared with the school staff and community.
In all instances the letter to the board of trustees (and the Gazette notice if applicable) is copied to the principal, the proprietor in the case of an integrated school, the local office of ERO and the Office of the Auditor General (OAG).
The board is required by Part 7A of the Act to pay the fees and reasonable expenses of a statutory appointee. In cases where the Ministry's assessment of a school's financial risk prevents the board from paying for an intervention, the Ministry will discuss with the board the need for additional temporary funding. The board is required to pay for at least the initial scoping phase of the intervention.

Statutory Appointee

The three possible statutory appointee positions are specialist adviser (s78K), limited statutory manager (s78M) and commissioner (s78N). The people appointed to these roles are selected because of the skills required and her/his compatibility with the school environment. While they are statutory appointees and work closely with the principal and the board (except for commissioners when the board is dissolved) they are not board members. They are not employees of the Ministry and must act independently when exercising their judgement. They can seek general consultative advice from the Ministry, but in the case of employment related issues they must seek independent advice from the NZSTA industrial adviser or similar, and not the Ministry. The appointees are required to report on a regular monthly basis to both the board (except for commissioners when the board is dissolved) and the local office of the Ministry.
In addition to the Secretary's letter to the appointee advising of their appointment, a formal agreement is signed recording the terms and conditions of each appointment. In the case of a specialist adviser (s78K), a contract for the provision of services is signed between the board and the appointee, because the Secretary directs the board to engage the services of a specific specialist adviser. In the case of a limited statutory manager (s78M) and a commissioner (s78N), a Memorandum of Understanding is signed between the appointee and the local Ministry office manager acting on the Secretary's behalf. The MOU (in the case of limited statutory managers and commissioners) and the contract (in the case of specialist advisers) reflect the requirements of the role, the reporting requirements and the agreed terms and conditions of the appointment.
Section 78K specialist advisers are appointed to advise the board on specified areas of its governance role, and the board is required to act on that advice. Specialist advisers work closely with the board and the principal. Specialist advisers do not have any of the board's powers vested in them. This section of the Education Act allows for the Secretary to direct the board to engage a particular person or organisation as a specialist adviser.
Section 78M limited statutory managers are appointed with specific functions, powers and duties of the board vested in them. The powers have been temporarily removed from the board. They may also be appointed with specific advisory powers, again which the board is required to act upon. Limited statutory managers work closely with the board and the principal. This section of the Act requires that a natural person is appointed as a limited statutory manager.
Section 78N commissioners are appointed following the dissolution of the board, with all functions, powers and duties of the board vested in them. All powers have been temporarily removed from the board. Commissioners work closely with the principal and with the school community. Commissioners often establish a representative community advisory group to provide a parent community perspective. Commissioners may also contract in additional specialist advice when necessary. This section of the Act requires that a natural person is appointed as a commissioner.
All statutory appointees are required to exercise independent and unbiased judgement.

Monitoring of Statutory Interventions

The Ministry regularly monitors progress of an intervention by way of appointee's reports and/or board reports, meetings with the appointee and/or the board, and ERO review reports.
Evidence of escalating risk may require:

increase in level of intervention;
amendment of an existing level of intervention; or
the use of more than one intervention.

Evidence of reducing risk and sustainable progress may require:

reduction of intervention;
amendment of an existing level of intervention; or
revocation of statutory intervention.

The Ministry is required to formally review an intervention annually, but may do so at any time throughout the course of a year if there is evidence of alteration of risk.
Annual intervention reviews are scoped and documented at local Ministry office level, with peer review at national office level. A memo is then sent to the Secretary advising of the outcome of the review, and the Secretary signs letters to the board and the appointee (if applicable) to advise of the outcome of the review.
If the Ministry's formal review of an intervention reveals that an amendment, escalation, reduction or revocation of the intervention should be recommended, then documentation will be prepared at local Ministry office level, working closely with the national office.
If a proposed change of intervention requires authority from both the Secretary and the Minister, because the Act dictates that, then the Ministry will first seek an `in principle' agreement from one authority before requesting that the other revokes or amends the existing intervention.
Amendment or revocation of an intervention is applied by the same authority that applied it, and the Ministry will accordingly generate documentation for appropriate signature. For example: the Minister applies a section 78M (limited statutory manager) intervention, and only the Minister can amend or revoke that notice; the Secretary applies a section 78K (specialist adviser) intervention, and only the Secretary can amend or revoke that intervention. The exception is the section 78N(1) level of intervention: in this case the Minister applies the intervention and directs the Secretary to appoint the commissioner. Before this intervention can be revoked the Secretary has to be satisfied that a commissioner is no longer required for the school, and the commissioner must then appoint a date for the election of trustees. The commissioner's appointment ends seven days after the election date concurrent with the board members taking office.

Exit from Statutory Interventions

Varying exit strategies are used for exiting a statutory intervention, and this will depend on the particular set of circumstances, evidence of sustainable change, and evidence of actual and potential risk factors.
As mentioned in paragraphs 41 and 42, interventions may be amended, reduced or revoked as evidence of risk decreases. This reflects a gradual withdrawal of support, as the board demonstrates sufficient capacity and capability to sustain the positive change that has been achieved.
If a statutory intervention is revoked, then the Ministry will continue to monitor progress and maintain an informal level of support for whatever period is considered necessary to sustain the positive change. The exception to this is when the outcome of the intervention review is that school closure has been recommended and approved. Sometimes, following the revocation of the intervention, boards of trustees decide to contract in the services of the previous statutory appointee, because effective working relationships have developed and they want to continue to access their skills and advice for a period of time.
The aim is always to return the school to full self-management as soon as required changes can be sustained without the statutory intervention.

Related downloads

Representation of the Statutory Appointee Roles [WORD; 34kb]

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