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Academy School Conversions – Essential Legal Issues

18 Mar 2016

The Chancellor’s most recent Budget announcement introduced an intention to require all Local Authority-run schools to convert to Academies by 2020 or have official plans to do so by 2022.

This triggers questions from Head Teachers, staff, Governors and Local Authorities, including –

  • Who will be in control?
  • Will there be an increased level of responsibility and liability – if so, upon whom?
  • What funding will be available and how will it be monitored and guaranteed?
  • Who will deliver services currently provided by the Local Authority and at what cost? For instance, property and grounds maintenance, HR, safeguarding/child protection, legal, clerking, staff training, school dinners, policy management, external moderation, interventions, admissions and exclusions.
  • What if something goes wrong?
  • Will we need to merge or at least work with other schools?
  • Will Ofsted still inspect?
  • Might conversion and extra responsibility and compliance requirements discourage key volunteers (such as Governors) from being involved?
  • How long will the process take?

Some areas need further detail from the Government but, in the meantime, here is our quick guide to Academies and the conversion/transfer process. We will be monitoring this issue very closely – keep an eye on our ‘News’ page as well as our Twitter feed for updates or contact Lucy Gray, Partner in our Education team for more detail on 0191 232 8345 or at Lucy.Gray@hay-kilner.co.uk.

What are Academies?

Currently, Academy Schools established under the Academies Act 2010 are:

  • Independent schools;
  • Underpinned by statute;
  • Governed by company, charity and education law;
  • Publically funded (from Central Government rather than Local Authority); and
  • Operated outside of Local Authority control but still subject to Ofsted inspections and monitoring.

Academy status gives the school a previously unprecedented level of control over its finances and wider situation, via the Head Teacher or Principal and the Trustees and Directors. As a result there are increased responsibilities and requirements on many levels meaning conversion to an Academy can be both a daunting challenge and a real opportunity.

How does a school convert to an Academy?

  • School and Governing Body commence consultation as to whether the school should convert to an Academy. Parents, pupils, staff, trade unions and the Local Authority should all be consulted.
  • Governing Body meets to pass a resolution to convert to Academy status.
  • School registers an interest in becoming an Academy with the Department for Education.
  • School continues detailed discussions with the Local Authority, including in relation to TUPE transfers for staff; financial deficit/surplus; transfers of land, assets and contracts; and the continuing provision of services by the Local Authority (if any).
  • School completes application to convert and submits application to Department for Education.
  • If the application is approved, an Academy Order is made by the Secretary of State for Education.
  • The Governing Body establishes the ‘Academy Trust’ to govern the new Academy.
  • Articles of Association must be agreed with the Secretary of State for Education.
  • The Academy Trust appoints the governing body of the Academy, who will be Directors and/or Trustees of the Academy Trust.
  • Agree Academy arrangements with local authority for contracts, assets and land.
  • School enters into Academy arrangements (including property transfers) with relevant parties and Funding Agreement with Secretary of State for Education, legally creating the new Academy.
  • Academy registers with relevant bodies, including Companies House, Charities Commission, Information Commissioner’s Office, examination boards and pension providers.
  • Negotiate new contracts with suppliers etc. or transfer current contracts.

The process often takes between 3 and 4 months but the timeline can vary greatly between schools.

Key issues and questions to consider before converting to Academy status:

  • The Academy will be a limited company as well as a registered charity, meaning increased obligations, including document filing requirements.
  • Who will be in control? Is the existing Governing Body willing to continue after conversion, with what is likely to be increased levels of responsibility?
  • Funding – how much is available, how will it be managed and by whom?
  • Who will provide necessary services and at what cost?  For example – legal, property and grounds maintenance, HR, clerking, staff training, school dinners, insurance, policy management, external moderation, interventions, admissions and exclusions.
  • Staff – although academies have more flexibility to set their own terms and conditions transferring staff are likely to be protected by TUPE. Will new staff be on different terms? What about pension provision? Input from Trade Unions?
  • Property – who currently owns the school and the surrounding land? How and when will that be transferred?
  • How will links be maintained with, for example, Social Services?
  • Costs of conversion.
  • Documents needed to complete the conversion – governing documents (including Memorandum and Articles of Association), property transfers, staff contracts, new or amended supplier contracts, funding agreements, policies dealing with admissions, appeals and other issues, insurance policies. There could be many more depending on the specific arrangements.

For further information or if we can help with any of the issues set out above, please contact Lucy Gray, Partner in our Education Team.

Call: 0191 232 8345

Email: Lucy.Gray@hay-kilner.co.uk