an introduction to free schools and the law

‘Free schools’ are a creation of the Coalition Government with the first being created in September 2011.

As for the non-legal descriptions of what they are:

  • Click here for what the Department says.
  • And here for the BBC’s description.
  • And here for what wikipedia says.

However, the underlying legal position is actually much simpler (at least in overall terms): free schools are, in law, academies.

What seems to happen (but it is not a legal requirement) is that:

  • where an academy is being created from cold, the academy is now sometimes (but not always) called a ‘free school’ (or it is set up as a UTC or studio school, both just types of academy)
  • the original label ‘academy’ is now (mostly) being reserved for the academies created by conversion from a maintained school
  • but, pre May 2010 (i.e. under the previous, New Labour, Government) they were all called academies, whether they were brand new or followed the discontinuance of an existing maintained school

So the term ‘free school’ has no legal meaning.

It is simply a non-legal label being used to describe some of the academies being set up from cold. (I have heared of situations where parents at a maintained school asked to set it up as a ‘free school’ but were told that, because it would be the conversion of an existing maintained school, it would have to be called an ‘academy’ not a ‘school’.)

When it comes to the detail:



  6 comments for “an introduction to free schools and the law

  1. Philip
    November 28, 2011 at 2:48 pm


    In general would TUPE apply to free school staff if the school was previously an independent school? What about if it was previously a maintained school, but the Free school covers a wider range of ages than the previous school, making it an additional school within the meaning of the AA 2010?

  2. SchoolDuggery
    November 30, 2011 at 7:50 pm

    Sorry, David, I think I’ve already posted this question somewhere else here, but I can’t find it. My question is: if a free school is set up when an existing school closes are there circumstances in which TUPE would apply. For example, a school where the building is the same, the pupils are largely the same and some of the staff are reappointed. I am assuming that the private schools that converted to free schools did come under TUPE, but I wonder about the closing middle schools in Suffolk which are reopening as free schools.

  3. December 7, 2011 at 11:51 am

    @ SchoolDuggery – Yes there are circumstances in which TUPE would apply. Your example where the school building is the same, the pupils are largely the same, and some of the staff have transferred would almost certainly amount to a TUPE transfer. As for the Suffolk example – as I understand it the new free school will include the pupils from the closing middle school but will also have additional yeargroups. It’s difficult to say without knowing anything more about the two schools and the surrounding circumstances, but it may well amount to a transfer of part of a business or understaking, or alternatively a service provision change (or part of one). Please see my post elsewhere for an explanation of these terms. Claire

  4. Colin Phillips
    May 30, 2012 at 7:15 pm

    We have a situation where 2 schools are closing (LA controlled) and a free school is being set-up on the site of one of the schools. The LA is saying that TUPE applies and the free school is disputing that claim. Given that the free school will be utilising the same building, equipment, books etc. and be teaching the same lessons to the same children (although there may be admissions from the children from the second school) would TUPE apply in this situation? The LA (to protect their position in law) has wriiten to the staff giving notice of termination. What happens if both sides continue in dispute. At this time no-one is sure who will be employed and who will be responsible for redundancy payment. What happens to the staff when the LA relinquishes responsibility on August 31st and no-one wants to pay the redundacy?

  5. DW
    July 31, 2012 at 3:45 pm

    It sounds as though TUPE may well apply, but each case turns on its particular circumstances. I imagine the teachers (and their union) are pursuing the point.

  6. BR
    August 16, 2012 at 11:34 pm

    Further to post from Colin Philips above, both schools where approved for closure by the council prior to the free school being granted approval, (school A) to close August 2012 and (school B) due to close August 2013.

    In both cases the reason for closure by council was based upon falling pupil numbers in each school, surplus places within the area and rising costs.

    The free school proposal was prompted by the consultation to close school A and was after approval granted to close school B.

    The council indicated at the time and has maintained the position that there is no need for either school or a new school It has adequate provision within other schools in the area (although children would have to travel a lot further)

    To highlight the above the catholic school ( school A) old feeder schools have been reallocated to other nearby catholic schools and existing pupils have been issued with a letter from the council stating where their child has been allocated an alternative place in existing nearby catholic schools.

    School A is a catholic school and the Free school in question will be a faith school not catholic.

    The free school originally wanted to set up on the site of the closing catholic school but permission was not given and the free school requested that the council bring forward closure of school B by one year to allow the free school to open, which the council agreed to do.

    The context of this decision is that a significant number of parents from school B had expressed a wish for their child to attend the new free school in August 2012 despite school B still having a year to run.Should the free school go ahead school B could be left with few pupils and thus would be unviable.

    In the case of school A parents chose not to accept the proposed transfer arrangements put in place by the council/ catholic church for school A.

    In the business sence it is more akin to a new company being set up and customers deciding they would rather deal with the new company than the one they dealt with before. In this case is TUPE likely to apply?

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