A legal opinion on the Academies Bill

The new Academies Bill, currently going through Parliament, is a short document, with profound implications for many pupils and parents in the schools that choose to ‘opt out’ and their neighbours. Here is a summary of what they might mean  from David Wolfe , a barrister from Matrix Chambers, in London, who has been involved in many cases on behalf of parents against existing academies

Academies as they are now

1. Academies are independent schools which operate through a contract (known as the funding agreement) between a sponsor and the Secretary of State.
2. Because Academies are independent schools, the legal rules relating to admissions, SEN, discipline and exclusions, the curriculum, governance (including the composition of the governing body), the right of withdrawal from RE and religious worship and so on which apply to all maintained schools automatically (by virtue of Acts of parliament and similar) do not apply automatically to Academies: they only apply if the particular funding agreement for the Academy in question includes them.
3. At least for those Academies set up recently, a model funding agreement has been used and the funding agreements have gone a long way to applying the same requirements and protections as in maintained schools, at least when it comes to SEN, admissions and exclusions (although it is still not clear whether children/parents would be able to enforce those rights through complaints to the LEA or in court  – as they can in a maintained school – because they are, of course, not parties to the contract which controls the Academy).
4. It is generally considered that Academies are bound by the Human Rights Act and by obligations on “public authorities” to promote sex, race and disability equality. The previous Government accepted that – the new Government’s position is not yet clear. But the Freedom of Information Act did not apply to academies.
5. When a maintained school was converted into an Academy, the local authority was obliged to consult widely on the proposal to “discontinue” the maintained school. Parents, pupils, staff, etc could find out about the intended academy and express their views. The local authority, and ultimately an independent Adjudicator, would take those into account when taking the final decision on the discontinuance, without which the Academy could not proceed.
6. When an Academy was set up newly as an additional (rather than replacement) school, there was no legal obligation for public consultation, only for consultation with the local authority.

What the Bill proposes

1. The Bill will extend the range of schools which can be Academies to include primary schools, special schools and grammar schools. Academy status is no longer targeted at schools which have been considered to be failing and, indeed, the Secretary of State has prioritised the most successful schools for conversion first.
2. Although Academies are to be charities, they are to be exempted from investigation by the charity commissioners.
3. The Bill is mostly concerned with the process of setting up an Academy and currently says almost nothing about how Academies will now actually operate – nothing on SEN, admissions, etc – all of that is left to the detail of the “Academy Arrangements” to be applied to each Academy.
4. “Funding Agreements” are to be replaced with “Academy arrangements” which can take the form of either an “Academy Agreement” or “arrangements for Academy financial assistance”. Academy Agreements are like the old Funding Agreements – a contract with the Secretary of State with a 7 year rolling contract term. Arrangements for Academy financial assistance are a grant process which could give the Secretary of State an even greater ability than with a contract to control the Academy.
5. But in either case, the other party to the arrangements could be either a sponsor (as before) or, newly, a company created for the purpose by the governing body of an existing maintained school.
6. The most fundamental change in terms of the process of setting up of Academies is to be the bypassing of the old process of public consultation previously associated, as above, with the formal closure of a maintained school. That will no longer be required. Instead, the governing body of a maintained school can apply to the Secretary of State for an “Academy Order”. He can also make an Order at his own initiative for schools which are eligible for intervention. If he makes the Order (as he is likely to do), that has essentially the same effect as the old “discontinuance” process (with all its public involvement) would have had before – it ends the maintained school – but without the public involvement. That does not, of course, prevent governing bodies from deciding to consult anyway before deciding to apply for an Order.
7. The effect of the Bill (and other related changes) is that (newly) the governing body of a maintained school could, without consultation (other than the limited TUPE consultation with staff) (1) set up a company (including with them as directors), (2) ask the Secretary of State to make an Academy Order, and (3) acting as directors of the new company, enter into an Academy Agreement or grant arrangements with the Secretary of State and then take over the assets of the former maintained school and run the Academy under that Agreement/arrangements. The LEA will have no role in either overseeing or supporting the Academy which will – in effect – be answerable only to the Secretary of State through the Academy arrangements.
8. The Bill provides only the loosest of frameworks for how the resulting Academy (which, as above, is an independent school) would have to operate: the curriculum must be “broad and balanced”, the school must be for pupils of different abilities, and it must draw pupils wholly or mainly from its local area. The Academy, like all other independent schools, would, of course have to comply with some basic general requirements (like the prohibitions on sex, race or disability discrimination) and offer a limited right to make complaints about the school. But the Freedom of Information Act does not apply. And nor will any rules relating to SEN, admissions, exclusions, staff, the composition of the governing body, withdrawal from RE, etc unless they are to be imposed (as before) through the Academy Agreements or conditions on the grant.
9. Academies will (as before) mostly get their funding directly from the Secretary of State. The Bill does not change that. And it says nothing about how much they will get. It is being suggested that Academies could benefit substantially from the distribution of money which LEAs have previously held centrally. But LEAs have already been under pressure for many years to delegate as much as possible of their central funds to schools. And LEAs will still have statutory obligations in relation to (for example) providing home to school transport, children who cannot be educated at school, Pupil Referral Units, assessing the needs of children with the most significant special educational needs and arranging provision for them (which will sometimes be in expensive, specialist, residential schools). The Bill does not change those things. So it is not clear how much scope there really is for additional funds to transfer, certainly not without additional obligations also being placed on the Academy.
10. The existing 203 Academies will now take operate under the new framework. But the Bill does not affect their existing Funding Agreements. If those are to be changed, that would need to be by agreement between the existing sponsors and the Secretary of State.
11. The Bill provides no mechanism for an Academy to revert to being a maintained school.
12. It is not clear whether the new Government considers that Academies are bound by the Human Rights Act or the duties which apply to “public authorities” when it comes to promoting race, sex and disability equality (and the point has never been argued out in court).
13. The Act says nothing about whether, having set up a company to take control of an existing school, the current governors could then, in practice, sub-contract the running of the school to a private company through a contract under which that other company could make profit.
14. The Act does not provide parents/pupils with any way of complaining about or challenging the operation of the Academy (which in maintained schools they do through the LEA and ultimately the courts or, in the case of children with SEN, to the SENDIST).

Issues for amendment to the Bill might include

• consultation in the new process for closing a maintained school to make way for an Academy (including the provision of information on how the Academy will actually run in practice)
• provision for children with SEN and application of the SENDIST
• the framework for discipline and exclusions
• the framework for admissions
• the curriculum
• the right to withdraw from RE, etc
• Freedom of Information
• The Human Rights Act
• Other obligations to promote race, sex and disability equality
• The composition of the governing body
• Complaints procedures
• The position of staff
• A mechanism for an Academy to return to being a maintained school
• What will the Academy Agreements (etc) look like?
• The provision of information about how Academies run
• Exemption from the public obligations on charities

David Wolfe