Academies – a guide for governors
What are academy schools?
May 18, 2016
Academies – a guide for governors
What are academy schools?
Academies as defined by the Department for Education (DfE) are publicly funded independent schools that have:
freedom from local authority control
ability to set own pay and conditions for staff
freedom from following the National Curriculum
Academies exist in a number of forms as academies, free schools, studio schools, university technical colleges (UTC’s) and sixth form colleges.
The Education and Adoption Act 2016
The Education and Adoption Act 2016 was granted Royal Assent on 16 March 2016. At its core, the Act is the drive for continuing structural change to secure the academisation of the overwhelming majority of schools on the premise of raising standards.
The Education and Adoption Act 2016 provides a statutory basis for removing the right of parents to have a say in the type of school in which their child is educated and removes from parents, governors, local communities and democratically elected bodies the right to be consulted on whether or not their school converts to an academy through the creation of a new ‘coasting’ category of schools which would be targeted for academisation.
Educational Excellence Everywhere White Paper 2016
The DfE White Paper, Educational Excellence Everywhere, makes clear the Government's intention to increase the number of academies and multi-academy trusts (MATs) still further as part of its proposal to ensure that all remaining maintained schools transition to academy status. The White Paper suggested that this should be achieved by 2022, although subsequently this proposal was abandoned.
Academies are not linked to democratically constituted local authorities and are not obliged to implement the national pay and conditions framework for teachers or the National Curriculum for children and young people.
The NASUWT believes that if standards of achievement are to be raised for all children and young people, then the focus needs to be on standards rather than structural change. Whether schools are academies, trusts, foundation or community schools, the test should be: are they delivering the entitlements a public education service should be ensuring for all children and young people?
What academy conversion means in practice
The DfE has made it clear that it expects all schools to convert to an academy, either through choice or because they are deemed to be ‘coasting’ or ‘inadequate’.
Regional Schools Commissioners (RSCs) have the power to issue warning notices to maintained schools and decide on the most appropriate course of action for schools deemed to be ‘coasting’.
Where a school is deemed inadequate by Ofsted, then the Secretary of State has a duty to issue an academy order.
The Secretary of State has the power to issue warning notices to schools deemed to be ‘coating’ and to decide on the most appropriate course of action.
Where a school is not subject to an Academy Order, the decision on conversion to academy status rests with the governing body, and if the school is a voluntary aided or controlled school, with the relevant religious authorities.
The decision to become an academy school is a highly significant and irreversible step for any school. It has profound implications for children and young people, governors, parents, the local community and staff.
It is a decision requiring the most careful thought and consideration, access to detailed and accurate information about what the change of status will mean in practice and in the long term, and a fair and open consultation process with all stakeholders.
Some headteachers and governing bodies believe that becoming an academy provides them with greater freedom, less bureaucracy and more financial advantages. However, this is not the case.
Maintained schools already enjoy considerable autonomy over their affairs, but nevertheless are accountable for their use of public money. Academies will be subject to the same inspection regime as maintained schools and their test/examination performance will continue to be included in the national school and college performance tables.
Academy schools also remain subject to primary legislation, including employment law, health and safety, and equalities legislation.
There is no financial advantage to becoming an academy.
Experience has shown that where private providers and sponsors are involved, individual schools often have far less freedom and flexibility than when they were part of the family of local authority schools. Academy sponsors operating in a competitive market will be concerned about their business reputation and financial margins often before considerations about how to best support effective teaching and learning. Many current sponsors have little or no background in running schools.
Multi academy trusts (MATs) may seek to ‘standardise’ the schools in the chain, giving less freedom and flexibility than the schools enjoyed when they were maintained. In many trusts, individual schools have relatively little control over key decisions, including those relating to pay, appraisal, the curriculum, pedagogy and behaviour management.
It is important to note that Ofsted inspects all schools on an individual basis, including those that are incorporated into MATs. As a result, teachers, school leaders and individual governing bodies in these schools are held to public account for actions and outcomes that are often beyond their reasonable control as key decisions are made at the overarching level of the MAT.
All schools will incur additional costs as a result of conversion to academy status. These include costs associated with support, branding, external services and warranties, personnel functions, legal functions, IT maintenance contracts, health and safety duties, special needs provision, public liability and asset insurance, as all may currently be managed, provided or covered by the local authority.
Potential accrued and contingent liabilities of the school that will fall on the academy can be considerable, particularly liabilities for pensions. These additional costs run to hundreds of thousands of pounds for an individual school.
The DfE’s own impact assessment indicates that all schools should expect a minimum one-off cost of academy conversion of £78,000. On completion of the process, the DfE has indicated that it will provide schools that have converted with a flat-rate grant of around £25,000 towards the cost of conversion. However, this will not be sufficient to offset the total cost associated with academy conversion, leaving each school with a minimum shortfall of around £53,000.
Long-term financial uncertainty
Academies are funded in the same way as maintained schools, following the local authorities’ funding formula. Once the money is allocated to the school, it will have to make provision to replicate those important services previously provided by the local authority from within their own budgets.
In a harsher public spending context, any new academy school would need to be able to guarantee that it could remain financially solvent and self-sufficient in financially turbulent times. Academy schools would not be able to fall back on support from their local authorities if their financial circumstances were to change, as schools have been able to do in the past.
There is no protection for the governing body if an academy school encounters a future budget deficit. Currently, all local authorities have statutory powers that enable them to provide financial support to schools in financial difficulty. Such support would no longer be available and members of the governing body may not be indemnified against any financial liability or loss as a result of a failure of the school’s provision.
The governing body of an academy school would also need to make arrangements for raising additional funding to support the development, upgrading or expansion of the school or any other capital projects.
Where an emergency arises, such as the development of a major structural fault or serious fire damage or flooding, which has occurred in some schools, the local authority will not be required or be in a position to provide the capital to repair or rebuild the school. The governors of the academy would have to apply for funding to the DfE. All of the funding available to assist academies in respect of this is limited. There is no guarantee that a bid would be successfully approved. Ministers oversee the allocation and distribution and are involved in the prioritisation of what the money is spent on.
Governors may think that such disasters could be covered by insurance through the Government’s Risk Protection Arrangement (RPA), which is available as an alternative to insurance. Irrespective of this, governors should ensure that they have sufficient cover to meet the requirements of the funding agreement.
The local authority has responsibility for the wellbeing of the pupils in such circumstances, but that could be discharged by simply relocating them to other schools. The academy governors, whether the school was functioning or not, would still retain the liability for staff, staff salaries and other ongoing costs and liabilities.
Increased running costs for schools
Schools that convert to academy status will need to use their budget allocation to meet the additional cost of paying for services no longer provided by the local authority.
As an academy, the local authority would be under no obligation to provide the school with the range of support services the school currently enjoys. These include:
governor information and support;
school improvement support;
training and professional development for staff;
legal advice and information;
insurances and indemnification, including public liability;
technology and other IT infrastructure support services;
licences and warranties;
representation and employment support.
A more extensive, illustrative list is given in Annex 1.
A key justification set out in the Government’s published White Paper, Educational Excellence Everywhere, for sponsored conversion to a MAT relates to the efficiencies and economies of scale that collaboration between schools is able to secure.
However, it is by no means clear that the forms of collaboration evident across MATs secure meaningful economic benefits in all circumstances. For example, the size of some trusts, the speed at which they have expanded and their geographical incoherence can serve to undermine rather than enhance economies of scale through, for example, more complex communications arrangements, increased transportation costs between sites and the introduction of inefficient bureaucratic procedures.
It is, therefore, not a guarantee that sponsored conversion will secure greater economies of scale and permit a greater proportion of available resources to be reallocated to educationally worthwhile activities.
Implications for governors
It is often assumed that becoming an academy will mean less bureaucracy for schools. This is a fallacy.
Schools rely on the support of volunteer governors and in many schools it is already difficult to recruit and retain governing body members because of the time and workload commitments associated with school governance.
Governing bodies of schools looking to convert as either a standalone academy or part of a sponsored academy may face increased workloads associated with the process. The independence associated with academy schools would, therefore, add to and compound the existing difficulties faced by many schools in finding people to serve on the governing body.
For those converting as a sponsored academy, there is no guarantee that the same level of governance will continue after conversion. There is no certainty under the governance provisions of the academies that a governing body in its current form would continue to operate when a school converts to academy status.
The governance provisions set only minimum requirements and allow for a reduction in the size and composition of the governing body. There is no requirement, for example, to have parent governors. Where such changes in governance have taken place previously, evidence shows that parent, staff and local authority-nominated governors are the casualties.
Under the arrangements for academies, the proprietors of the academy will have the final say over the school’s future governance and management. Not every member of the existing governing body will be a proprietor of the school.
Often academy schools have trust boards appointed with no fixed term of office. They have considerable discretion to appoint and dismiss governors, which further undermines the ability of governing bodies to reflect and represent all stakeholder groups.
Additional legal responsibilities
The governors will be wholly responsible for the full range of statutory responsibilities, many of which would previously have been discharged by the local authority or other relevant body. These include the requirements of pension provision, health and safety liability and a raft of other legislative provisions previously monitored, managed and administered by the local authority on behalf of schools.
Pensions are a good example of the complexities the governing body will inherit. There are important legal responsibilities with regard to pensions. The governing body would acquire the full weight of responsibility for the employers’ functions, which are subject to a range of statutory requirements. Failure to meet these statutory requirements could result in significant financial penalties being imposed upon the governing body by the Pensions Regulator. The expense of securing appropriate legal and personnel advice in this one area of responsibility alone to ensure compliance with statutory provisions would be significant.
Governors may also be personally liable in the case of the failure of the academy school, or if the affairs of the academy are inadequately or unlawfully discharged.
An illustrative list of some of the issues which will become the sole responsibility of governing bodies in academies can be found in Annex 2.
Public concern and opposition
Schools that choose to become an academy could find that they come into conflict with parents and the local community. This stresses the importance of genuine engagement and meaningful consultation prior to conversation.
Vulnerability to legal challenge
Governors considering conversion to an academy leave themselves extremely vulnerable to legal challenge.
Public law duties can be breached by failing to correctly identify appropriate persons with whom to consult, failure to carry out an appropriate consultation process, failure to give conscientious consideration to issues raised and failure to consult the local authority.
Governors have separate but equally important responsibilities under Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). Breach of these leaves a governing body liable to be fined.
A good school for every child – how governors can help
All schools should be focused on delivering high standards of education. Converting to academy status is a distraction for governing bodies, school leaders and other staff, pupils and parents. Experience shows that simply considering academy status can divide the school community and take the focus of everyone involved off the all-important core function of teaching and learning.
Academy conversion also serves to fragment education provision. Schools work best when they work collaboratively, rather than in competition with each other. Thousands of schools judged by Ofsted as ‘good’ or ‘outstanding’ have achieved their high status without the need to become an academy. There is no evidence, either in the UK or internationally, that structural change raises educational standards.
By remaining part of the family of local provision in an area, schools can work together to better meet the needs of all children and young people. They can benefit from mutual support and expertise. They can access the economies of scale that enable the best value for money from their school budget and education funding.
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