an introduction to academies and the law

Before understanding academies, it is helpful to have an understanding about ‘maintained schools’

There are about 25,000 schools in England.

Almost all of them are ‘maintained schools‘ – they are ‘maintained by’ local authorities.

There are several types of maintained school: commuity schools, voluntary aided schools, voluntary controlled schools, and special schools (with terms like grammar school, state school, comprehensive school, all being used as well).

In each case, the local authority which maintains the school (i.e. pays for it) also has a role in overseeing what it does and in co-ordinating things like admissions.

There have been lots of acts of parliament (starting with the Education Act 1944), statutory instruments (aka regulations), codes of practice, and Government guidance documents which have specifed how maintained schools (or particular types of maintained school) operate, and what they must, can and cannot do.

Parents and pupils (among others) can insist that a school obeys those requirements, including by bringing legal proceedings (generally in the form of what is known as a ‘judicial review’).

Pupils and those parents who are on low incomes may well be eligible for ‘legal aid’ to get legal advice and bring those proceedings.

So what about academies?

A small proportion of the total number of schools in England are ‘academies’. At the Conservative party conference in October 2011, Secretary of State Michael Gove said that there were now around 1,300 academies, up from 200 when the Coalition Government came to power, accounting for one in seven pupils in ‘state’ schools.

For a good non-legal description of academies see what the YPLA says on its website.

Academies (previously known as ‘city academies’) are not maintained schools. They are, in law, ‘independent’ schools.

There are two main issues here: what are the rights of parents/pupils/etc at academies? and how are academies set up? There is more detail on those in other posts. But just to get you going:

An introduction to the rights of parents/pupils/etc at academies

Instead of each parent having a separate contract with the school as is the case with conventional independent schools (aka ‘public schools’), there is a single contract. It is between the Secretary of State and the proprietor of the academy. It is often called a ‘funding agreement‘.

So when it comes to legal obligations in relation to academies:

  • some acts of parliament apply to all schools (such as the prohibitions on discrimination in the Equality Act) including academies.
  • some acts of parliament apply to all independent schools (including academies).
  • some acts of parliament apply to academies.
  • where an act of parliament imposes obligations on a maintained school, that does not apply to an academy unless its funding agreement says so.
  • other rights and obligations are set out in the funding agreement for the particular academy.
  • But the funding agreement can be amended by agreement.
  • And funding agreements can be overriden by acts of parliament (for an example of that see here) such that what is written in the funding agreement may not actually be the correct legal position.

That can lead to a lot of confusion -  a can of worms?

Even the Department for Education gets it wrong sometimes for example by claiming that all academies must comply with the admissions code of practice because their funding agreement requires them to do so, when in fact not all funding agreements say that.

An introduction to the process of setting up an academy

As for the process of setting up an academy (most likely by a maintained school ‘converting‘ to becoming an academy), the Academies Act 2010 introduced new rules.

They made it easier to convert a maintained school into an academy than was the case before.

It is now not necessary to go through the process of ‘discontinuing’ the existing maintained school. It can instead be ‘converted’ by the Secretary of State making an ‘academy order‘ following a stripped down consultation process in which governors are required to consult on whether to convert the maintained school into an academy.

For more details see the post on what to do if someone wants to turn your school into an academy.

They also introduced some new (fairly basic) requirements where an academy is being set up from cold. That is what the Academies Act 2010 calls an ‘additional school’. The Secretary of State is obliged to take account the impact of a new academy on the existing schools in the area. And the promoters are obliged to consult on whether to go ahead. Note, however, that what seems to be happening in practice is that where academies are being set up from cold, they are mostly being set up as ‘free schools’ or as UTCs or as studio schools (other names for what, in law, is an academy) rather than ordinary academies.

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