In England (not Scotland or Wales) people are finding that their local school wants to become an ‘academy’ or someone is proposing to set up a ‘free school’ in the area. Or they are unhappy about what an academy or (from September 2011) a free school is doing or not doing. Or there are issues with a UTC or studio school.
They want to know where they stand ‘in law’.
This blog is for anyone concerned about academies, free schools, UTCs or studio schools and the law.
I have been advising parents and pupils on legal issues, and helping them with legal challenges, in relation to academies since 2005. On this blog I will try to answer common Frequently Asked Questions (FAQs) about academies (and the variations on that theme) and the law. I can’t promise it will all make sense – a lot of the legal stuff about academies just does not make sense. But I will try to explain the complications.
I have tried to make the explanations as simple as possible. However, the danger of trying to make the descriptions too simple is that they become misleading. Most other explanations of the legal position in academies seem to gloss over important differences between academies and maintained schools, or between one academy and another. That makes them misleading. I am trying to avoid that mistake here. Sorry if that makes things sound complex. That is because the Department for Education – which I will call ‘the Department‘ – has made things complex.
Some posts on this blog provide more legal detail for the people who want technical stuff. If anything needs more explanation, please ask.
I will try to keep the information on this blog up to date. But, in the world of academies (and the variants), it is not always easy to spot all the developments (it is all so complicated and so spread around – in different funding agreement, in legislation, and so on). So please let me know if something is out of date or I have missed something. Or if you think something is simply wrong (this is meant to be a place for discussion).
And please add comments.
So what’s it all about – what are these new ‘academies’ and ‘free schools’, ‘UTCs’ and ‘studio schools’?
Once upon a time there were just two sorts of schools, public (aka ‘independent’) schools and maintained schools:
- Public (or independent schools) have traditionally been private schools where parents pay fees. Most of the legal arrangements are in the contract between the parent and the school. So they vary school to school.
- Maintained schools were set up and funded by local authorities (formerly called ‘local education authorities’) since 1944. Maintained schools are available to everyone in their area, free of charge. Acts of parliament specify how they run, and what they can, cannot, must and must not do. That means that parents and pupils have the same basic legal rights around things like admissions, exclusions, SEN, complaints and so on, whichever maintained school they attend. There are different types of maintained shools: community, voluntary aided, voluntary controlled and special. Other terms were also used: grammar, comprehensive, state, state-funded, and so on. But they all refer to maintained schools or types of maintained school.
Now we have several new types of school – academies, free schools, UTCs, and studio schools. Here’s a very quick introduction to the legal framework.
- Academies are (in law) ‘independent schools’. But instead of parents having contracts (and paying) academies operate under a contract with the Secretary of State for Education who pays the costs. The rules for running an academy are in the contract, often called a Funding Agreement. The contracts vary from one academy to the next. So the legal rights of parents and pupils can vary too. And funding agreements can be (and have been) overriden by acts of parliament (such that bits of what is in the funding agreement for an academy may actually not apply at all – beware!) On top of that, unlike maintained schools, in academies parents and pupils have very few direct legal rights: it is harder for them to make sure that an Academy or free school sticks to the rules (as they would be able to do at a maintained school). Under the Labour Government some academies were created by converting existing maintained schools, others were new. Under the Coalition Government academies are being created from conversions and from cold.
- Free schools are (in law) a type of academy. There is no real legal difference between something called an ‘academy’ and something called a ‘free school’, although the individual contracts could vary and so the detail of each one could be different.
- UTCs are apparently a type of free school and thus a type of academy.
- studio schools also seem (even less information is available) to be another type of academy.
For a slightly more detailed, but still introductory, explanation see the introductory posts on academies and free schools and UTCs and studio schools.
Anyway, all that complexity makes it difficult for people to know their rights when it comes to all these new state-funded independentt schools. It is also more difficult for them to enforce those rights.
The whole thing has become a ‘can of worms’.
David Wolfe, Matrix
p.s. this blog is not about campaigning about academies/free schools/UTCs/studio schools – other sites do that
If a SEN child is excluded permanently from an Academy school, does the school have to follow the same process as if they were in a mainstream school. My son is a risk of permanent exclusion after he has had two fixed term exclusions, his school has now become an Academy. He is 12 years old and is ADHD and ASD with moderate learning difficulties
Have a look at the posting about exclusions from academies. You should find the answer there.
Hi, do you have any guidance at all for a primary school (C of E Controlled) that inspite of being satisfactory is being forced down an academy route. I am unable to find any guidance on this as yet and would like to know what we need to be aware of / look out for. I am a Parent/Governor/Chair.
Any help will be gratefully received – as I am sure there will be many others (218 primary schools worth) who would find this extremely useful.
P.
May I ask who is doing the ‘forcing’ and what form it is taking?
ps Have a look at my posts on the powers of the LA and SofS to force conversions.
The Local Authority & ultimately the DfE. We are on the ’200′ list of under-performing primary schools – even though we are on an upwards trend. We have had conversations with both of these – and it’s quite clear we have to go down the academy route. Our sponsor – as we are a church school – is deemed by default to be the diocese / church of england unless we feel that they can’t come up with the goods etc. But then the church would fight if another sponsor were to be put in place.
Is there are precedent in the country for 2 schools based in the same build co existing after one is forced to academy status?
I’ve not heard of it but other people may have come across it. What issues are coming up?
Very quickly, on Mary’s point, I have read of a school, in Essex, I am sure it was, where it has been suggested that an ‘emerging’ free school will share its premises. The maintained school is in difficulty…. I will try to find reference. Of course, this happens in America, where charter schools co-exist with public schools.
I have four questions;
how much funding are private organisations bringing to academies? For example, is Mossbourne still part funded by Sir Clive Bourne’s trust or is it all entirely state funded?
Two, how do we find out the ratio of private to state funding in any given academy?
Three, is there are legal limit to the amount of private revenue a charity/company can add to the public revenue pot?
Four, are these arrangements in the public domain? Or do the details have to be requested? Is that an easy process.
Many thanks,
Melissa B
You should be able to get answers to your factual questions through Freedom of Information Act requests to the academies themselves (as for their accounts and for amounts of donations, etc).
I am not aware of a legal limit on the amount which an academy could receive from private sources. (Bear in mind that an academy is a private legal entity, albeit slightly marginal in that some ‘public law’ obligations also apply to it.)
Is there a legal limit to the amount that a maintained school can receive from private sources?
My school has just decided to be come an Academy. When the Chair of Governors announced this decision she also stated “At the same time [the governors] voted to start the process to convert to Foundation status. This will run alongside the Academy conversion process and will take place just prior to the academy conversion. The reason we have decided to do this is to secure the freehold of the land and buildings for the future generations of March. Without Foundation status the Academy would hold the land on a 125 year lease. This is the only difference converting to Foundation will make.” What difference will converting to an academy make? Is this to stop the LA regaining control if we have a change of government and policy in the future?
Not as far as I know, provided the money is for a legitimate purpose (eg not a bribe!).
I am part of a group hoping to open a free school in the Midlands, our current school is closing under education re-organisation and we have applied for free school status, the LA are now arguing that TUPE applies and that the teachers are employed by the current governors (it is a voluntary aided C of E school. I note that in Suffolk when Claire Middle school closed and Stour Valley free school opened the LA decided that TUPE didn’t apply but I can find no references to the councils decision and why they made this decision. Clearly this will help us with our argument that TUPE doesn’t apply can you please help.
Greg
Free schools will surely be a good thing for families as LAs will not be able to influence the admission process as they do at the moment with special schools. The collusion between Heads of LA special schools & LAs Vs Parents at Tribunals must end now! At the Lamb Inquiry, parents highlighted the need for a separation between the LAs assessment of a child’s needs & LA determining provision, usually their own, and excludes other more effective independent schools. Parents with disabled children have little choice at the moment if they cannot afford to challange an LA to appeal.
A head teacher of a new academy has intimated that unlike LAs they do not have to filter internet use. I can find no specific duty on internet filtering that applies to LAs but there are various acts etc that do place duties on LAs or persons who provide services for children with regards to child safeguarding and this includes exposure to unsuitable material. There is much debate about how far the internet should be policed by LAs and schools and LAs vary in what they do and don’t let through their filters. The one thing I cannot find is anything in the Academies Act 2010 and the Education Act 2011 and associated regulations that exempts Academies from any of the safeguarding legislation that applies to LAs and maintained schools. I assume that the head teacher concerned is misinformed which is worrying. Is that correct?
Hello – finding it hard to find guidance on the SEN / statement / academy thing. IPSEA don’t seem to have much info yet (I assume they will). My child has just been “refused” a place by a recently turned academy and I’m not sure how to proceed. Am asking the LA to name the school in any case …and trying to work out what order I should do things … is there any guidance for parents anywhere that’s useful and that you’ve come across? would relaly appreciate a link,.
I’m not aware of any general advice other than what is on this blog. Your best bet is to get your local authority on side. Try and persuade them to name the academy. Then, if the academy is resistant at least you have the LA on your side. If the LA won’t do that, then you may have to appeal to the SENDIST. There is a posting dealing with the legal issues around naming academies in statements which I hope is of some help.
The issue is not whether there is anything which EXEMPTS academies from the rules which apply to LAs and maintained schools, but whether there is anything which APPLIES those rules to academies. The simple position is that rules which apply to maintained schools do not apply to academies unless the funding agreement for the academy in question says so. So the head teacher might well be right.
Re academies: is it possible to have a definitive answer as to whether or not it is legal for a headmaster to exclude – even temporarily – a Lower Sixth Form Student BEFORE his final AS level exams, based purely on perceived underachievement (even though his Module 1 grades and Module 2 ‘predicted grades’ are in excess of those required for entry into the Upper Sixth Form of that particular academy?)
(This extended query supercedes the previous query with the misprint.) Re academies: Is it possible to give a definitive answer as to whether or nor it is legal for a Headmaster to exclude – even temporarily – a Lower Sixth Form Student before his AS level finals, simply for perceived under-achievement (even though his Module 1 grades and Module 2 predicted grades are in excess of those required for entry into the Upper Sixth Form)? And having been coerced into transferring to a different school, should that student then be able to resume his place at the original academy the following September, if the academy denies having excluded the student/if the exclusion proves to have been unlawful?
The governing body of my son’s Catholic Primary school are considering becoming part of an acedemy chain , which is being supported by our Diocese. Although the school got “Good” in our recent OFSTED we have been told we cannot become an academy in our own right. The governors have not advertised for a new headteacher, ours leaves at the end of term. Can we do anything to make our views heard? Why do we have to change when the majority of pupils and parents are happy as we are?
Dear David
Would you be able to tell me who will determine a planning application when it is submitted in a non unitary authority area (ie there is a district and a County Council)? Normally a planning app for a new secondary school would be determined by the County Council in they’re capacity as an LPA (the District Council only a consultee) as they are the Local Education Authority, in accordance with Regulation 3 of the Town and Country Planning Regulations 1992 and the application would be for land they own. Can you assist re who should act as the Local Planning Authority in determining a free school planning application? Any links to regs/DCLG guidance etc would be very gratefully received.
Thanks very much
I would expect it to be the local planning authority as it would be for a private school’s application. Is that what’s happening?
I infer that the school is currently a maintained school (voluntary aided or voluntary controlled). It that case, if the governing body want the school to become an academy then they will need to go through a consultation process (as explained elsewhere on this blog). So they must, at least, listen to you – although they does not mean they have to agree with you!
It is not possible to give a definitive answer without knowing the circumstances. In general, informal exclusions are unlawful. And the list of circumstances in which a school can remove a student from its role do not include ‘underachievement’. Here’s the list:
(a) that he has ceased to attend the school, or, in the case of a boarder, that he has ceased to be a pupil of the school;
(b) that he has been continuously absent from the school for a period of not less than twenty school days and—
(i) at no time was his absence during that period agreed by the proprietor;
(ii) the proprietor does not have reasonable grounds to believe that the pupil is unable to attend the school by reason of sickness or any unavoidable cause; and
(iii) the proprietor of the school has failed, after reasonable enquiry, to ascertain where the pupil is;
(c) that the pupil has died;
(d) where the pupil has been admitted to the school to receive nursery education, he has not on completing such education transferred to a reception, or higher, class at the school; or
(e) that he has been permanently excluded from the school.
Do academies have the same assessment reporting as maintained schools? Will their results be moderated and reported nationally? Will be lose a national picture due to the diluting and confusing names nad types of schools? What will happen to the vulnerable children? Whose looking out for them? Does privatising pur schools make it better…will every child in England get the same entitlement to achieve in school or will it become a postcode nightmare? All these things make me sad.
The assessment and reporting obligations for an academy are essentially limited to those in its particular funding agreement.
The diversity of names for schools (which clouds proper underestanding of them) is indeed confusing.
Local authorities still have statutory obligations (eg under the Children Act 1989) in relation to vulnerable children.
My husband is in a school which is closing down as a result of education authority organisation. The government has agreed to a new free school to be set up in the area and many if the pupils will be transferring to the new free school. The Archdiocese would not agree for the new free school to be set up on the site of the school that is closing down as they own the land. Another school maintained by the same LEA was due to close at the end of 2013 but this has been brought forward to This year and the free school will use their premises. Pupils therefore fro
Both schools will therefore be on this site but in the new free school. My husband who is 57 was given by the education authority a letter informing him that the school was closing and an estimate of his redundancy pay. The new free school does not require all the staff from both schools and therefore my husband was prepared to take redundancy offer and not transfer to the new free school. It has now come to light that the LEA are now saying that they will not pat the redundancy pay as TUPE applies. However the free school could not sustain this and the jobs are already being sorted! My husband is therefore in the situation where he has no job and no redundancy pay! Sscandalous! What is the legal situation here?
My colleague Claire Darwin is preparing a response…. watch this space….