The short answer is that the governors consult stakeholder and decide to apply to the Secretary of State asking him to make an ‘Academy Order’ which would convert the school into an academy at the same time as the governors enter into a ‘funding agreement’ with the Secretary of State.
This blog is not about campaigning on the question of whether or not a maintained school should be converted into an academy.
This post is simply about the legal process of what happens when someone wants to turn a maintained school into an academy.
But obviously, understanding that legal process can be important when it comes to campaigning on the question of whether a particular maintained school should or should not be coverted.
There is a separate post explaining how free schools are set up.
This post is about the process of setting up academies which are not also free schools. So this post is about what happens where the governors of a maintained school are thinking about coverting the maintained school into an academy.
So how does a maintained school become an academy?
In the old days (i.e. before September 2010) (you can skip this bit if you want, but the history can help understand what happens now)
Before the Academy Act 2010 the process of turning a maintained school into an academy involved two stages:
- the governors or local authority would initiate the statutory process of ‘discontinuing’ the existing maintained school. That involved a specific legal process which required consultation and the publication of statutory notices. If people objected, the final decision was made by an independent ‘adjudicator‘
- alongside that, the person setting up the academy (called a ‘sponsor’ by the Department in those days) would discuss the proposals for a new academy with the Department. An ‘expression of interest’ would be produced (and often that document featured in the consultation about discontinuance of the maintained school). Then, on the day that the maintained school was discontinued, a funding agreement would be signed between the sponsor and the Department, so the old school would close and a new one would be created.
There were a number of cases in court through which parents challenged the legality of the process which had been adopted. Those cases led to the process being refined and improved at the time. They are now of largely historical interest, but here they are anyway:
After each of those, the Department improved the model funding agreement (although obviously only with effect for later academies) and the process of setting them up.
Now – since September 2010
But since the Academy Act 2010 (i.e. now) the process has been streamlined to make it easier for maintained schools to convert to becoming academies.
When the Academies Bill was first put to parliament, it did not even require that there be consultation on a proposal to convert.
But the Government succumbed to pressure to introduce some consultation obligations into the process. But, because they did not really want them there in the first place, those obligations were expressed in the most broad brush terms.
So the process now is that:
- The governing body of the existing maintained school applies to the Secretary of State asking him to make an ‘academy order’ (or the Secretary of State can initiate the process if the school is ‘liable for intervention’ – i.e. failing)
- If the Secretary of State agrees and makes the academy order, then the maintained school will be ‘converted’ into an academy with various consequences including that the local authority must cease to maintain (i.e. pay for) the school
- But that actually only takes place when the Secretary of State enters into ‘academy arrangements’
- Before that happens, the governing body of the maintained school must undertake consultation on the question of whether the school should be converted into an academy. For what that means and the problems that can arise, click here. But beware! the fact that governors consult may not give them power to stop the process – a recent court decision suggests that, once they have applied to the Secretary of State for an academy order, they may be powerless to stop the process.
And what about the liabilities of the maintained school?
I have emphasised the word ‘convert’ because that is what the Academies Act 2010 says: it talks of a maintained school being ‘converted’ into an academy.
In the old days, as above, the maintained school was discontinued and then an academy was set up. It would still be possible for the governing body of a maintained school to go through the ‘discontinuance’ process (the statutory provisions remain in force to deal with the situation where a maintained school simply comes to an end, eg because of falling rolls).
But they do not need to any more because of the option of ‘converting’ as above.
However the Upper Tribunal has held that conversion implies discontinuance, at least for deciding what happens to the liabilities of the former maintained school, including liabilities for any discrimination claims.
So what should you do if you want to find out what is happening?
If someone is thinking of converting your maintained school into an academy and you want to participate in that process:
- find out where the process has got to – have they made an application yet? if so, when? and when have they asked that the process of conversion should take place?
- find out whether the Secretary of State has agreed to it yet?
- find out whether an Academy order has been made?
- ask about the consultation which has been undertaken or which they have said they will undertake?
- ask about the funding agreement? have they simply gone for the model agreement? or have they suggested changes, such as to improve the position of pupils and parents and give them rights closer to those which they enjoyed at the maintained school?
- ask them if they fully understand the legal position in an academy such as when it comes to things like:
- parents and pupils enforcing their rights,
- ensuring that provision in statements of SEN is actually made by the academy
- whether pupils have a right to be taught anything at all in an academy or whether an academy can just decide not to teach them
- What the Academy will do when parents request it as the place for their child with a statement of SEN
- Whether the Academy will restrict the number of children with statements of SEN which it agrees to admit
What about the decision to become an academy?
It’s for the governors of the school to decide whether to apply to become an academy.
They must do so in the light of accurate information and a full picture of what that means. As a legal minimum they should get proper information about, and properly take into account:
- the benefits of converting
- the disadvantages of converting
- the extra money, if any, the school would get, and on what basis
- the extra responsibilities and costs the school would take on
- the risks
- the ‘freedoms’ (but asking themselves whether the things they might actually want to do with those freedoms are things they cannot do already)
- the impact on pupils
- the impact on teachers
- the impact on other staff
- the impact on the community
- the impact on other schools
That information should also be part of the consultation process.
If the governors ignore key things, or proceed on the basis of important factual or legal errors or without sufficient information, then their decision to go ahead can be unlawful and can be challenged by judicial review.
When they make the decision, they must specifically consider its impact in equality terms by virtue of the ‘public sector equality duty‘. So they need to give proper consideration to the potential impact on BME students, disabled students, particular religious groups (including children who are not religious), and so on. If they don’t then their decision could be unlawful.
Those things should all be set out in documents which the governors consider properly when they come to make the decision. The document should be made publicly available.
The governors’ decision to become an academy comes in two stages:
- deciding to apply to the Secretary of State asking him to make an academy order.
- the actual signing of the funding agreement
The process is not finalised until the funding agreement has actually been signed. So the decision to go ahead can be challenged by judicial review up to that point. After that point, a challenge can still be brought, but it is harder.