Academies: independence and freedom — or state control?

There seems to be a degree of urban myth developing in relation to academies, evidenced by the stimulus for this article — a recent comment that I heard in the course of my practice that in one area 'there are four or five academies selecting from the same pool of children. Each is supposed to take 25 per cent from each ability band to get an even distribution of ability within the school, but when it comes down to it there is “trading” that goes on between them — within an ability band there is top end and bottom end.'
Can this lawfully happen? What degree of freedom do academies really have?

NOTIONAL FREEDOM
An academy notionally has the freedoms of an independent school. This in itself is something of a myth because these days independent schools are in one way or another quite seriously constrained in a number of areas — although admittedly not so seriously in the key areas of curriculum and admissions.

Binding legislation
Some legislation, however, specifically binds academies as if they were maintained schools — for example, the recent legislation requiring schools to make full-time education provision for pupils excluded for fixed periods of more than five days. They are also bound by the general law — so all discrimination legislation applies to them (as indeed it does to independent schools). And as recipients of public funding they are subject to the human rights legislation just as maintained schools are.

Regulation of academy conduct
In major areas, however, academies are not subject to statutory provision, whether by way of primary legislation, i.e. Acts of Parliament, or secondary legislation, i.e. regulations. Instead, the conduct of an academy, from governing body downwards, is regulated by a combination of the academy constitution (which broadly is the combined equivalent of a maintained school's instrument of government and the relevant regulations dealing with the constitution and conduct of the governing body) and the funding agreement that sets out the basis of funding and contains stipulations regarding key areas of the conduct of the school. Neither can be changed except with consent from the secretary of state.

PRACTICAL EFFECT
The practical effect of these is that to a very large extent an academy has to operate in the same way as a maintained school and, as a generalisation, there is very little that an academy can do that an innovative maintained school with an entrepreneurial head teacher and governing body could not also do.

In many cases, freedom seems to be an attitude of mind. However, there is a significant difference in terms of accountability in that a maintained school is accountable to its local authority rather than to DCSF, and may be subject to greater public pressure — not always of the most productive variety.

RESTRICTIONS
It is true that the governance documents for the earlier academies are quite broad and allow for freedom in a number of respects that do not now apply to new academies. The current model documents are prescriptive in a number of areas, most notably:

Governance
The academy is required to have a governance structure that resembles a maintained school, although the comparison is not exact. There is the same requirement to exercise its functions strategically and to act as a critical friend.

Admission
Critically, and by way of dispelling the myth referred to at the start of this article, academies are subject to the same rules and procedures as are all maintained schools. There is no distinction to be drawn between academies on the one hand and foundation and voluntary aided schools on the other.

Academies participate in the admission forum and co-ordinated admission schemes, they must act in accordance with the admissions code and are subject to the same rules on selection — academies are specifically required to be all-ability schools.

They are also required to follow the same consultation procedure annually in relation to the setting of admission arrangements, although there is a key distinction that the adjudicator has no jurisdiction over academies. Instead, any change to the laid-down arrangements must be approved by the secretary of state who will consider objections.

Admission arrangements do vary quite considerably from academy to academy. An recent article in the Times Educational Supplement highlighted these variations. But almost all of those cited could be replicated in the arrangements for foundation and voluntary aided schools. The diversity is not a function of academies: it exists elsewhere in the system and reflects local needs and local practices.

Curriculum
Academies are required to follow the national curriculum and the same requirements for RE and collective worship. They are also required to carry out assessments in the same way and to the same extent as are maintained schools.

Special Educational Needs
Academies are required by the funding agreement to admit any pupil with a statement of special educational needs that names the academy.

The funding agreement requires similar governor responsibility and adherence to the SEN code of practice. It specifies that 'there will be an emphasis on the needs of the individual pupils including pupils with special educational needs (SEN) both those with and without statements of SEN'.

Staffing
Teachers must have qualified teacher status and must have access to the teachers' pension scheme. Support staff must have access to the local government pension scheme. However, an academy is free to employ all staff, teaching and non-teaching, on such terms as it wishes.

This is a major freedom, at least in relation to teachers, but it may be more illusory than real. Academies are, in theory at least, funded on the same basis as maintained schools. They have more money but the extra is, again in theory, intended to compensate for the requirement to make provision for elements provided for maintained schools by their local authority. The money available for staff is unlikely to allow for much variation from the statutory pay scales.

Also, academies are recruiting staff in competition with other maintained schools and in the main will want to provide staff with contracts and conditions with which they are familiar. The scope for variation is less in practice than might appear at first sight.

Discipline
Academies are entitled to take advantage of the recent legislation on discipline and they must have regard to guidance in excluding pupils, whether for fixed periods or permanently.

They do have greater freedom in this area than maintained schools, simply because the requirement 'to have regard to' something is less than the requirement to 'act in accordance with'. It is possible to have regard to a recommended practice but to disregard it, although one needs cogent reasons for doing so.

Thus, whereas in a maintained school only the head teacher can exclude, in an academy that power could be delegated elsewhere. Again, technically, an academy could exclude for an indefinite period, although the probability is that if this were challenged, the secretary of state would direct reinstatement.

Academies are also responsible for establishing their own appeal mechanism in relation to permanent exclusions rather than appeals going through the local authority process. Again, because the requirement is only ‘to have regard to’ the guidance, they may institute a different mechanism for the review of exclusions by governors.

In practice, academies are likely to replicate the procedures in maintained schools and would very likely be subject to constraint by the secretary of state if they moved materially away from that process.

Charing
Academies follow the same rules as do maintained schools in relation to charging for school meals and the provision of information.

UNSATISFACTORY HYBRID
An academy is by law an independent school. However, it has virtually all the characteristics of a maintained school. Much of the confusion and misunderstanding about academies stems from this highly unsatisfactory hybrid compromise and from the absence of a clear and transparent specific legal structure for academies.

The constitutional documents and the funding agreement are at the whim of DCSF and there is no effective scrutiny of what they contain. Indeed, their contents are the subject of individual negotiation as each academy is set up and the integrity of the academy project is compromised each time any deviation from the norm is allowed.

TIME FOR TRANSPARENCY
The attitude of DCSF seems to have changed with the passage of time and perhaps political pressure. The first academies were indeed set up with relatively little prescription. Successive models of the documents have produced added requirements to compel academies increasingly to conduct themselves as maintained schools do.

As with Henry Ford, the DCSF attitude is increasingly that academies can be of any colour as long as they are black. It is time for a clear, uniform and public specification of how academies are expected to conduct themselves. That would give transparency and help to dispel the myths that otherwise will continue to develop.

Richard Gold is head of education law at Stone King LLP.

FIND OUT MORE
Academies website
Information on academy governance and the law