What is required when governors consult on converting their maintained school into an academy?

The short answer is that they need to let everyone know what they are proposing, and why (with full information), give them a chance to comment and listen, with an open mind, before deciding whether to proceed.

First, a bit of history…

Prior to the Academies Act 2010, the process of turning a maintained school into an academy involved formally ‘discontinuing’ the maintained school (a process under the Education and Inspections Act 2006) which required publication of specified information and a formal and defined process of public consultation and involvement.

And now….

However the Academies Act 2010 set up the more streamlined process of ‘conversion’. Here, there is no need for the formal process of discontinuance because the Secretary of State makes and ‘Academy Order’ which makes the necessary change.

But section 5 of the Academy Act 2010 nonetheless requires that:

(1) Before a maintained school in England is converted into an Academy, the school’s governing body must consult such persons as they think appropriate.

(2) The consultation must be on the question of whether the school should be converted into an Academy.

(3) The consultation may take place before or after an Academy order, or an application for an Academy order, has been made in respect of the school.

The Department says this on its web site about consulting:

“All schools are required to carry out a consultation but it is up to them to decide whom and how to consult. There is no specified length of time for the consultation and schools have flexibility in how it is conducted. None of the schools which have already converted has had any problems with the process of consultation, which is very straightforward. Examples are available in the conversion guide on the website.” [my underlining]

However, the claim of ‘flexibility’ needs to be treated with caution. As set out in another post, the law lays down some important requirements whenever a public body consults (i.e. they do not just apply to academy consultations).

As for what they might mean in the context of consultation about an academy conversion:

  • it is hard to see how an academy could lawfully not consult parents (and potentially pupils) at the school already; also at feeder schools; and indeed those feeder schools themslves; also other, potentially affected, schools in the area
  • those consultees need to be given enough information about what is being proposed to understand why it is being proposed – why do the governors want the school to become an academy?
  • they need to be honest about their reasons; and provide proper explanations for them
  • those explanations need to withstand scrutiny – they cannot be nonsense
  • the information needs to be in a form which people can understand – not technical gibberish
  • people need to be given enough time to digest it; and the opportunity to ask questions and for more information
  • if something changes in the course of the consultation, then the consultation may need to be extended for the fresh information to be provided to everyone
  • the governors need to be open minded on the question of whether to go ahead when they consider consultation responses.

As for the information to be provided to consultees – the post dealing with the process of conversion explains the information which governors need to be properly informed about when they take their decision. That same information should be made available to consultees for them to comment on in the consultation (and their comments taken into account).

If those things do not happen, then it may well be possible to challenge the legality of what has happened by judicial review. Often, it is enough just to threaten legal action to persuade the governing body to, at the very least, start the process again. That happened at William Tyndale School in Islington and Tidemill School in Lewisham.

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