what’s it all about?

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 the school is being forced to convert to being an academy. Or it is being suggested that the school should voluntarily convert into being an academy. Or they are unhappy about what an academy or 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.

It’s also for anyone who wants to understand how it all got so complicated, why it matters and what could be done about it – see here.

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 So please let me know if something is out of date or I have missed something.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

 

 

  49 comments for “what’s it all about?

  1. Julie Locke
    October 10, 2011 at 7:25 pm

    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

  2. October 20, 2011 at 8:37 pm

    Have a look at the posting about exclusions from academies. You should find the answer there.

  3. Paulina
    November 9, 2011 at 12:04 pm

    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.

  4. November 9, 2011 at 12:06 pm

    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.

  5. Paulina
    November 9, 2011 at 4:51 pm

    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.

  6. Mary
    November 17, 2011 at 11:26 pm

    Is there are precedent in the country for 2 schools based in the same build co existing after one is forced to academy status?

  7. November 21, 2011 at 8:04 pm

    I’ve not heard of it but other people may have come across it. What issues are coming up?

  8. November 26, 2011 at 8:53 am

    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

  9. November 27, 2011 at 11:53 am

    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.)

  10. November 30, 2011 at 11:54 am

    Is there a legal limit to the amount that a maintained school can receive from private sources?

  11. Martin Field
    December 6, 2011 at 4:47 pm

    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?

  12. December 8, 2011 at 5:15 pm

    Not as far as I know, provided the money is for a legitimate purpose (eg not a bribe!).

  13. Greg Watson
    December 12, 2011 at 12:59 pm

    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

  14. June Goh
    January 10, 2012 at 11:04 pm

    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.

  15. Impetuous
    February 24, 2012 at 9:43 am

    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?

  16. Natalie Steed
    March 5, 2012 at 6:04 pm

    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,.

  17. DW
    March 7, 2012 at 9:39 pm

    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.

  18. DW
    March 7, 2012 at 9:41 pm

    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.

  19. March 21, 2012 at 11:50 pm

    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?)

  20. March 22, 2012 at 12:21 am

    (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?

  21. Rosemary
    March 28, 2012 at 9:57 pm

    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?

  22. matthew
    March 29, 2012 at 1:59 pm

    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

  23. DW
    April 3, 2012 at 6:50 am

    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?

  24. DW
    April 3, 2012 at 6:52 am

    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!

  25. DW
    April 3, 2012 at 7:10 am

    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.

  26. L Roberts
    April 26, 2012 at 6:08 pm

    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.

  27. DW
    April 30, 2012 at 8:28 pm

    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.

  28. Clare riley
    May 12, 2012 at 7:37 pm

    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?

  29. DW
    May 15, 2012 at 4:45 pm

    My colleague Claire Darwin is preparing a response…. watch this space….

  30. May 20, 2012 at 3:41 pm

    I am seeking some clarification and apologies if this has been addressed elsewhere on your blog I have looked and cannot find a definitive answer.

    Am I correct in thinking that the issue with academies is not supplying what is written into a statement for a child with SEN, because that duty lies with the LA, the issue is that academies can chose whether or not they admit a child with a statement to their school in the first place.

    Also how easy is it for a parent to ensure that provision that is specified and quantified within a statement is supplied while a child is attending an academy?

  31. May 21, 2012 at 3:24 pm

    Dear David
    What a great site! I would be very grateful if you could contact me at the above email. myschoolgate.co.uk is a new website for all UK parents & carers – it is the first of its kind in the UK. It enables parents to access their own school forum and a year group forum, has a trip advisor style school rating system and aims to give help and advice across all aspects of schooling. I wondered if you would be interested in providing quotes for the site’s blogs from time to time. If you have a chance to look at the site – could you put a link on your site and I will do the same?

    Best regards

    Justine Vincent
    Director, My School Gate Limited

  32. DW
    May 22, 2012 at 6:34 am

    Have a look at the posts and comments in the SEN section of this blog. The simple answer is that the legal obligation to arrange provision in a statement remains with the LA. It may also be possible to bring a legal challenge to an academy which is not making the provision set out in Part 3. But that is not straightforward because of ongoing uncertainty about whether it is possible for a child/parent to enforce the provisions of a funding agreement (and, even then, it will depend on what is in the funding agreement for the particular academy/free school). There is, at present, no definitive answer.

  33. DW
    May 22, 2012 at 6:37 am

    I’ve added a link to myschoolgate.

  34. June 27, 2012 at 5:45 am

    My partner and I absolutely love your blog and find nearly all of your posts
    to be precisely what Im seeking for. Would you hand over
    guest writers to write content for you I wouldnt mind producing a post
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  35. John
    July 2, 2012 at 8:17 pm

    Dear David
    My question is – when a school converts to an Academy – is it still a public body? My thinking is that it is NOT – as it is then a “Company limited by guarantee” As it is then a company, it is no longer a “public body”?
    Thanks in advance

  36. Dr Mohammad Nasrullah
    July 13, 2012 at 10:49 pm

    We (AL-BURHAN GRAMMAR SCHOOL) are a small independent school with 80 girls on roll and outstanding ofsted report. We applied to convert into a 3 Form entry Free School for 2013. We are shocked to know that our application is not accepted after interview held on 16 May 2012. We have a track record of 100% GCSE pass rate since 2007. We can provide further details if needed.
    We need advice if we could challeng DfE decision. We know some groups have no track record, no existing school, no expertise in education and stiil got approval for free school.

    Kind Regards

    Dr Nasrullah
    Al-Burhan Grammar School
    Birmingham
    Tel 01214405454
    admin@alburhan.org.uk

  37. mark
    July 16, 2012 at 2:39 pm

    Maybe someone here can advise on this. Our local senior school is an academy. On the same site we have an infant y1-2 and junior 3-6. very big site with playing fields between.
    Head of senior school has got together with local developer who happened to be a governor up until head announced they had a plan to build new school 1 mile away on green belt and dev would pay but only if he can build 300 houses on green belt and 380 on playing fields of old school ! The dev has been refused several times to build on green belt so you don’t need to be genius to see where the school idea came from. Unfortunately it has gone into borough plan. hopefully the council will see this for what it is but you never can tell, money has a funny way of making things happen. My question ( got there eventually ) is, has the head of the school got the authority to do such a thing as she only runs the school she deosnt own it. Surely this is publicly owned and she can’t go around making deals with public property. Anyone got any ideas how this can be blocked legally. Oh, the whole community is 100% against this but the head refuses to listen to public opinion.

  38. DW
    July 31, 2012 at 3:26 pm

    If the school is an academy then the academy trust may well own the land (some own it some have leases of former maintained school sites). If the trust owned the land then, depending on what constraints there are in the particular funding agreement (and you should check the detail) then they can deal with it like any other private landowner.

  39. DW
    July 31, 2012 at 3:32 pm

    The fact that something is a company does not preclude it from being a public body. Although, as far as I know, the point has not been directly tested in court, I am pretty sure that the courts would find that, as a provider of state-funded education, an academy is a public body. Certainly the view (which I share) that an academy can be challenged in a judicial review is premmised on them being public bodies. And there is no real doubt that they are ‘public authorities’ for the purposes of the Human Rights Act 1998 and Equality Act 2010 (which raises similar considerations).

  40. DW
    July 31, 2012 at 3:33 pm

    I am happy for you to add content in comments, as others have done.

  41. Annie
    August 28, 2012 at 11:06 am

    Can a school proceed with application for academy conversion even if the pupils have not been consulted?

  42. August 28, 2012 at 4:13 pm

    Hey! Would you mind if I share your blog with my twitter group?
    There’s a lot of folks that I think would really enjoy your content. Please let me know. Thanks

  43. DW
    September 25, 2012 at 5:10 pm

    It is up to the consulter to decide who to consult. There is no absolute rule that they must consult pupils though, particularly in a secondary school it is hard to see that they could make a lawful decision not to consult at least older pupils.

  44. Clare
    December 19, 2013 at 5:43 pm

    A Y12 student with a full 37 hour statement naming the school has been at a school since his Y10 and started in Sept 2013 in the school’s Sixth Form. He has always been in mainstream, with moderate learning disabilities and some wheelchair use. The school is a converter academy which was declared as Requires Improvement in Sept 2013. Three weeks in the family was called to a routine planning meeting but instead were told that the student would be required to move immediately to another school with the suggestion being it should be a special school. That has since been changed to a requirement to change school in Sept 2014. Can an academy act in this way and what options does the family have. The LA Assessment team have been less than helpful, informing the family that an academy is not required to follow the ‘same rules’ and even against contesting a change of school with the County panel. The family feel strongly he should continue at the school and stay in mainstream and that anything else would be a retrograde step. The school letter stated it would be ‘kinder’ to the student to be with students of a ‘similar level and ability’.

  45. DW
    January 4, 2014 at 4:43 pm

    What you describe sounds almost certainly unlawful. Assuming no basis for a disciplinary permanent exclusion, the only way for the school lawfully to get the pupil moved would be to raise it through the statement annual review process. It should make no difference that it is an academy.

  46. Lise Banks
    January 27, 2014 at 8:40 pm

    Hi, I was wondering if you could help me. A catholic prep school near where I live and work have applied for Academy status. Prior to the application they invited parents from the local primary to the school, telling them if they got their children in now at a £6,000 a year fee this year next year would be free as they would be an academy. The school (which is losing it’s funding from the Christian brothers) obviously wanted their classes full and had selected he pupils by testing them. The parents have been promised the classes will continue to have only 24 pupils by class and will continue to tutor them for the Catholic Grammar school. All seems rather good. However, my bone of contention is I live in an area with great S.A.T results in all schools and they are therefore over subscribed. It seems rather unjust that my child is at a school with 34 children in a class but a school up the road will have only 24! Sour grapes maybe, but as a tax payer I find it rather unfair that in the same area one school takes 24 whilst all the rest take more than 30. Surely this is not right. I’ve heard that the said proposal has been refused twice due to lack of ‘value for money’ if said proposal goes through, who do I write to to express my disgust? To me this is selective education paid by the likes of me and other hard working tax payers. For primary education I believe it is totally unacceptable to select pupils. Please e mail so at least I can understand all of this.

  47. Catherine Simon
    February 7, 2014 at 4:42 pm

    Given the radical changes to education policy since 2010, could you please outline the accumulated powers of the Secretary of State for Education. You comment on the lack of parental representation in the case of Academies being outside local authority control. What other powers regarding schools now reside in Whitehall and what is your view on this?

  48. DW
    March 14, 2014 at 9:09 am

    The important point is not so much the requirement of the funding agreement (because breach of that here is likely to be a matter for the Secretary of State, who is presumably in agreement). The issue is the requirement of section 1A of the Academies Act itself, namely that an Academy School must “provides education for pupils who are wholly or mainly drawn from the area in which it is situated”. I can certainly see scope for argument that relocating in this way could breach that. If that throws up particular problems for existing children/families at the school, then I can see that legal issues would arise. Assuming that it is parents, not children, who have been consulted, then it would need to be a parent who brought any legal challenge to the consultation process. It is certainly worth looking at in more detail.

  49. DW
    March 14, 2014 at 9:16 am

    I agree. The National Secular Society or British Humanist Association may well be interested in that one!

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