Fast-tracking to academy status

In May 2010, the newly in post Secretary of State for Education, Michael Gove, announced new legislation that would fast-track the process to convert to academy. He also invited every maintained school in the country to convert to an academy. Chloe Brunton reviews the plans

The academies programme has now been extended to primary schools, special schools and grammar schools, with a focus initially being on those schools which have been judged by Ofsted to be outstanding. These schools will be automatically 'approved' for conversion with the intention that a large number of them will convert in September 2010, with the exception of special schools who will be delayed until September 2011.

The Department for Education (DfE) has now confirmed and named more than 800 schools judged by Ofsted to be outstanding, who have registered their interest with the DfE for possible conversion in September 2010. In addition to the outstanding schools, a further 600 schools are also waiting in the wings for their turn to be processed. The response has therefore been overwhelming. So how will these conversions work in practice?

The Academies Bill
The new fast-track process intended to enable schools to convert by September 2010, assumes that the Academies Bill receives Royal Assent before that time. At the time of writing, the Bill has just reached the committee stage in the House of Lords and is yet to pass through the various stages in the House of Commons.

If the Academies Bill comes into force, it will remove the requirement for a school to seek the consent of the local authority to convert and also remove the requirement for the local authority to consult on closure of the existing school. Instead, the DfE would issue an 'academy order' requiring the local authority to cease to maintain the relevant school.

The new fast-track process
This process is currently being targeted at 'outstanding' schools. However, it seems likely that schools who have not been judged to be outstanding, will follow a similar process, if not identical, to those which are not. While the precise details of the new fast-track conversions are not yet entirely apparent, the most recent guidance issued by the DfE gives some clear indications in connection to, for example, the land arrangements. Once a school has submitted its registration form to the DfE, it will shortly after be allocated a contact from the DfE to offer support and guidance on the process.

The role of the local authority
While the role of the local authority in the conversion process has been significantly reduced, the authority still has role to play in the legal process to convert. It is therefore beneficial for the school to open up the dialogue with the local authority as soon as possible.

The areas which the local authority will need to be involved are:
• staff transfers;
• the asset transfer agreement; and
• the grant of the 125 year lease.

It may be there are, for example, community use agreements, which will need to be appropriately dealt with along with any construction documentation and of course, PFI.

The legal aspects of conversion
Below are a number of legal matters which will need to be dealt with ahead of conversion:

The transfer of staff
Staff will transfer over to the new Academy under the Transfer of Undertakings (Protection of Employment) Regulations (often referred to as the TUPE Regulations). This means that staff will automatically transfer over and that their terms and conditions will be protected. Formal TUPE consultation may only begin once the Governors have passed the necessary resolution approving the proposal to convert to an academy.

Where there are recognised trade unions, consultation will take place with representatives of those unions. The obligation is to inform and consult with the employee representatives of any employee who will be affected by the transfer.

The establishment of the Academy Proprietor
Academies are established as a charitable company limited by guarantee (known as "the Academy Trust" or "the Academy Proprietor"). The Academies Bill proposes that all new and existing academies will become exempt charities although it remains to be seen whether this will be retained within the legislation.

Funding agreement
The Academy Trust will enter into a funding agreement (known as an "Academy Agreement" under the Academies Bill). This agreement sets out the obligations imposed on the Academy Trust in relation to the running of the academy and the various different grants which the Academy Trust will receive.

Land arrangements
The current property arrangements for any maintained school will depend on the type of category of school and also whether the school is supported by a foundation.

The recent guidance issued by the DfE indicates that the Academy Trust will typically be granted a 125 year lease from the local authority.

Transfer agreement
There will need to be a transfer agreement documenting the transfer from the local authority to the Academy Trust. This will deal with the transfer of for example, records for staff and pupils and third party contracts.

The way ahead
It is important to note that this new legislation also brings opportunities for existing academy as well, including federations with other schools, such as feeder primaries, or with an increased number of academies in the sector, clusters of academies being formed to increase their purchasing power.

The extent of the new era of freedoms is yet to be established while the revised funding agreement remains unpublished. But it seems likely that schools will be empowered under the re-launched programme to innovate and enhance outcomes for their pupils.

Chloe Brunton is senior staff solicitor at Veale Wasbrough Vizards. Chloe can be contacted at cbrunton@vwv.co.uk or telephone 0117 314 5301.

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