This is the second of two articles looking at academies, focusing on some of the interesting and developing legal issues relating to the academies programme, including overriding statutory legislation, obligations under the funding agreement, academies’ duty of care, and issues of health and safety and negligence
What legislation is applicable to an academy?
The legal framework setting out the formal agreement required to set up an academy, as well as the conditions necessary to its status, are contained in the Education Act 1996, as substituted by the Education Act 2002. The Learning and Skills Act 2000 provides for the transfer of teaching staff and continuity of employment when staff move from a maintained school to an academy. All the above legal requirements are given practical effect in what is called the Funding Agreement. This is discussed in more detail below.
What is the Funding Agreement?
This is a key legal document, which, along with the Memorandum of Understanding and the Articles of Association, forms the basis of the legally binding relationship between the government and the academy. It is the means whereby the government can exercise control over the academy and the means whereby the academy is held accountable.
In return for the financial assistance to either build or refurbish a new school, the academy must ensure that certain conditions are met.
There has been much press coverage about the effects that new academies will have on the local community, as well as existing schools in the area. One of the fundamental conditions for an academy’s status, as set out in the government’s model funding agreement, is that that the school must lie at the heart of its community and must share its facilities and resources with that community and with other schools in the area.
The Funding Agreement also sets out a legal obligation upon each academy to provide both a broad-based curriculum, albeit with a particular emphasis on one or more specialisms, and a requirement that the academy must provide education for pupils of different abilities.
Other requirements, in relation to (among other things) admissions, exclusions and SEN, were discussed in the previous article.
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What is the role of the Academy Trust?
Each academy is set up as a company limited by guarantee, with charitable status. Each academy is owned and run by its academy trust, which has responsibility for the building and the running of the academy as well as control over the land and other assets.
As a trust, it must comply with company law as set out in the Companies Act 1985, charity law and the requirements of the Charity Commission.
Trust and company law is complex. Suffice to say that the effects of the above ensure that the academy’s finances are transparent and non profit-making. It also means that if a sole sponsor in the form of a philanthropist or company director were to die, the trust has the ability to continue after their lifetime.
Do local authorities have any legal obligations or controls over academies?
The government has a statutory duty, for example, to consult each local authority before opening an academy. Once the site and sponsor have been identified, the government must also work with the local authority and sponsor to develop the vision and specification for the academy in what is called a formal Expression of Interest. This Expression of Interest has to be signed by the local authority.
A local authority may also have further direct input by becoming a co-sponsor of an academy. As a co-sponsor it would have some influence on shaping the ethos of the new academy. Irrespective of whether a local authority is a sponsor or not, it has a seat on an academy’s governing body.
Who can be a sponsor?
Sponsors can include educational foundations, universities, philanthropists, businesses, private school trusts and faith communities. Each sponsor agrees with the government what specialism or specialisms the academy will adopt. A five-year inquiry into the government’s academies programme, published last month, illustrates how the academy programme has changed since its inception. Initially sponsors were white, male businessmen; new sponsors are more likely to be groups of universities, local authorities and educational trusts and charities. A sponsor may be involved in more than one school.
What happens if a sponsor wishes to end its relationship with the academy?
Given that the academies programme is a recent development, we are only now beginning to see some of the practical effects of the programme. There is no precedent for a private backer pulling out of an academy, although this has recently happened at the Unity City Academy in Middlesbrough. Termination of an agreement has always been recognised as a possibility within the terms of the funding agreement. Either the academy or the government may terminate the contract within a required notice period of not less than seven years. The government may independently take the decision to terminate the agreement if it is of the opinion that the academy no longer has the characteristics of an academy or is failing to meet its conditions and requirements. Ultimately, the government may serve a notice on the academy, under s165 of the Education Act 2002, that the academy be struck off the Register of Independent Schools. In the event of termination, the school ceases to be an academy within the meaning of s382 of the 1996 Act.
In the event that the agreement is ended, ownership or interest in the land and/or the building cannot be disposed of without government consent. The effects upon the academy in terms of funding are also dependent on the terms of the funding arrangement.
What about the Human Rights Act?
An issue which has resulted in much media debate is whether an academy is affected by the Human Rights Act 1998 (HRA 1998). The HRA only affects public authorities. In defining whether a body is a public body, the Act will consider whether it is publically funded, whether it exercises statutory powers, performs a function in place of local government or provides a public service.
The government has always made it clear that it was never its intention that pupils attending an academy would benefit from a lower level of human rights protection than would be the case at a maintained school. Academies receive direct funding from the DCSF and academies do contribute to the UK’s delivery of the right to an education, as part of the local authority family of schools. Despite their semi-independent status therefore, the presumption for now is that the HRA is applicable.
This e-bulletin issue was first published in January 2009
About the author: Vicky Lapins