Behind the political controversy over the Government’s policy of compulsory free school for all under 7’s lies the latest new complexity for the legal structures and the funding agreements for academies and free schools.
Funding agreements are already supplemented by freestanding obligations in legislation, such as applying the Freedom of Information Act to academies/free schools, and applying equality obligations to all schools including academies/free schools.
And we have already seen funding agreements being overridden by legislation: in relation to permanent exclusions and SEN. In each of those instances, whatever the funding agreement says no longer applies.
And we have an ever-evolving model funding agreement that only ever applies to new academies/free schools as they are being created.
But now, with the mandatory free schools provisions being put in place through the Children and Families Act 2014, we have another variation.
In particular section 106 of the 2014 Act allows the Secretary of State to make an ‘order’ extending the list of pupils for whom maintained schools must provide free school meals. That’s the easy bit.
But rather than simply impose the same obligation on academies/free schools, parliament has enacted a provision which says this:
“(1)Academy arrangements in relation to an Academy school or an alternative provision Academy must include provision imposing obligations on the proprietor that are equivalent to the school lunches obligations.
(2)“The school lunches obligations” are the obligations imposed in relation to maintained schools and pupil referral units in England by—
(a)section 512(3) (provision of school lunches on request), and
(b)section 512ZB(1) (provision of free school lunches to eligible persons).
(3)Academy arrangements in relation to an Academy (other than a 16 to 19 Academy) that are entered into before the date on which section 106(3) of the Children and Families Act 2014 comes into force are to be treated as if they included the provision required by subsection (1), to the extent that they do not otherwise include such provision.”
So what that does is this:
- If a new academy/free school is created, the same obligation as applies to a maintained school will have to be written into its funding agreement (that’s the “academy arrangements”).
- But for existing academies/free schools, their funding agreements are to be treated as including that obligation (even though it will not be written in).
So if you want to know what the legal position is in an existing academy/free school you will need to look at:
- its funding agreement
- but then ignore any bits which have been overridden (but you won’t know that from the agreement itself) – provisions on SEN and permanent exclusions are examples
- but also look at the bit which are not in the funding agreement but apply anyway – provisions on discrimination and Freedom of Information are examples
- but now also treat the funding agreement as saying things it does not actually say (by treating it as if it required free school meals for under 7’s even though it says nothing at all about that).
So yet another layer of complexity has arisen for anyone trying to keep on top of all this.
And the complexity goes beyond simply how you find out what is required, it also impacts on how academies are held to account for these things.
That is because an obligation directly imposed by statute is enforced by judicial review (because not complying is breaking the law). But an obligation in a funding agreement (or, now, an obligation which is treated as being in the funding agreement even though it is not actually there) is simply a contractual obligation – i.e. in the contract between the Secretary of State and the academy trust. And enforcement of that obligation is more complicated with it still being an open question as to whether parents and children can enforce obligations in funding agreements.