Richard Bird, legal consultant to the Association of School and College Leaders (ASCL), looks at the advantages currently enjoyed by schools with foundation status and ponders where they fit into the government’s vision for the future.

Schools run schools, but…’ is a common position in politics for both the Left and Right to strike. The ‘but’ may be ‘but only with challenge and support’ or ‘but only if they collaborate with all other schools’ or ‘but only if they accept their fate as secondary modern schools.’ In effect, what all these ‘buts’ reflect is the belief that schools have to have a degree of autonomy, but since the public is paying for them, they cannot be just left to themselves.

To square this circle of autonomy and control, England has developed a range of publicly funded schools. The recent white paper (which proposed yet another addition to this variety) highlighted just how various these are.

There are academies, which are run as state-funded independent schools but which are constrained by national curriculum requirements and – at least in theory – by their funding agreements with the government.

There are also voluntary aided schools, which are mostly faith-based, and which are made available to the state by their trustees in return for being wholly funded for running costs and 90% for capital costs. These schools are subject to local authority and Ofsted supervision.

Then there are voluntary controlled and community schools (not to be confused with the community or extended schools initiated in the village college movement in the 1920s in Cambridgeshire). These are essentially run by the local authority but with devolved powers given to the governing body in relation to some employment and financial powers.

Finally, and thrown into relief by the government’s proposals for ‘trust’ schools, there are foundation schools. They are a major part of the provision in some areas of the country and almost unknown elsewhere. With voluntary aided schools they make up about one third of all secondary schools and just under a quarter of primary schools. The Education and Inspection Bill will in fact put the ‘trust’ concept into action through the existing legislation on foundation schools.

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What is a foundation school?
The basic description of a foundation school is that it is a school with charitable status, maintained by the local authority, which owns its own buildings and grounds, employs its own staff and determines its own admissions. In this degree of self-government, it is like a voluntary aided school. Where it differs is that it does not generally have a trust behind it and it is generally not faith-based.

‘Maintained by the local authority’ may be something of a fiction nowadays in England when most of the money for schools comes from dedicated government grant. Essentially, it means that all the money that is provided for the school passes through the local authority’s books and some part of the costs, either of the school or the local authority, or both, comes from council tax. This distinguishes it from an academy, where all the money comes straight from central government (as it did for grant maintained schools).

Unless the school has a foundation, it is the governing body of a foundation school which corporately owns the buildings and grounds and can determine the development that will take place on them, and the use to which they will be put, in and out of school hours. It has the responsibility for making sure that those buildings are safe and properly maintained.

Similarly, the staff of the school is employed by the governors. The governors exercise full employment rights: they hold the contract. So, for example, where the local authority and trade unions have negotiated a local agreement, there is no question of the governors of a foundation or voluntary aided school being obliged to follow it. Having said that, they may become a party to such an agreement or guarantee to their staff that they will shadow it. National terms and conditions of service apply, however, and continuity of service, for many purposes, is sustained on appointment to a foundation school.

Finally, the school is responsible for deciding whom to admit and on what basis a choice will be made if (as tends to be the case) the school is over-subscribed.

Governing body
Partly as a result of these responsibilities and powers, the governing body of a foundation school differs from that of a community school. There may be five local authority governors in a community secondary school. A foundation secondary school may have two. Instead, the governing body appoints partnership governors, nominated by people in the community, or foundation governors, if the school has a foundation (most do not). There is also one more parent governor than in community schools.

Like any maintained school, but unlike academies, foundation schools are subject to the supervisory role of the local authority. The local authority can intervene if there are issues over the propriety or prudence of the governors’ financial dealings; if discipline appears to be breaking down; if there is under-performance; or if the school buildings are being neglected. Similarly, there is a reserve power to direct a child to a foundation school, as with any other admission authority, if there is no place at a suitable school near to the child’s home.

Foundation schools are also subject to all the other constraints, challenges and supports that central government policy has introduced: from the abolition of the turkey twizzler to the National Strategies and Ofsted inspection.

In particular, as we shall see, the admissions policy of a foundation school is open to scrutiny and challenge.

Like all other maintained schools they are also vulnerable, if to a slightly lesser degree, to the impact of ward politics in the distribution of resources to schools.

There are, of course, other practical constraints: for example, the governors as employers may decide on a generous retirement policy but the local authority may decide not to fund it.

The main characteristic of these arrangements is clarity of roles. There is no doubt, in other words, who is responsible. If an employee goes to employment tribunal, the governors alone will have to respond. If a person is injured on the school premises, the governing body is in the line of fire for negligence. If the local government ombudsman finds that admissions procedures have been operated in a way that amounts to maladministration, the governors must pay the fine from the school’s budget.

Why bother?
Given that the responsibilities of foundation schools are potentially heavier than those of community schools, it is worth asking why anyone would want to take those responsibilities on. The answer seems to be that the heads and governors in those schools wish to control as much as possible of their own destiny, however limited this control may be, and accept that the price for doing that is the additional responsibility.

On staffing, for instance, the directness of the relationship with staff is valued. The staff know who is responsible for decisions and to whom to make representations. Governors used to running their own businesses feel more at home with that kind of situation. Policies are not simply handed down to the school with the information that an agreement has been reached with unions and should therefore be implemented. The school has the opportunity, if it wishes, to tailor policies to its needs.

This applies particularly at the present time to the various restructurings of support staff that have been undertaken and will become more important as higher level teaching assistant and non-teacher pastoral posts become more common.

The appointment of key staff is even more important to some governing bodies. Foundation schools are obliged to send copies of their long lists to the local authority for comment but, unless they have specifically granted advisory rights to the head of children’s services, the local authority’ s involvement ends there. There is a safety mechanism by which the local authority can ask for the secretary of state to order the school to grant advisory rights. However, it can only be activated to prevent the school from proceeding without a level of advice that would be of the same quality that the local authority could provide. This condition is easier to meet in some areas of the country than others. Many schools do involve their local authority, of course.

As far as buildings and other facilities are concerned, heads and governors seem to value the fact that they can integrate the development of the building into their own vision for the school to a greater degree than they perceived they were able to do before. They also control the use of buildings and this allows them both to raise funds directly and, again, to tailor the activities to the ethos of the school.

Of course, access to major investment is still in the hands of the local authority and so it is normal to find close cooperation between the school and property services. However, it is the feeling that the school has the initiative that once more seems to be important.

School admissions
The role of the admissions authority is one that is almost impossible to unravel from the political rhetoric that now surrounds it. Almost any statement generates heat rather than light.

From an objective viewpoint there seem to be only three real possibilities for organising school admissions. To use an economic metaphor, one is the command economy, where parents are told which school their child is going to by a controlling centre. Another is a cartel arrangement, where the courses that children may want to do are carved up between suppliers so that no one goes out of business. The third is consumer choice, within an environment of either scarcity or plenty. The first is the old system of local authority control. The second, to an extent, is the implication of collaboration at 16+. The third is the situation which has existed since 1980, as a result of pressure from parents who resented being told to which school their child must go, to fit in with a plan thought up in the town hall.

The present government is committed to choice. It clearly hopes to move from a situation where good schools are scarce and the difficulty of getting a child into a good school is great, to one where good schools are numerous. The choice will then be between one good and another, rather than between the good, the bad and the ugly.

Where do foundation schools fit in? The concept of schools being their own admission authorities was carried over to the grant maintained (GM) schools from the voluntary aided sector. The idea was that schools could set their own ethos, which did not have to be an ethos based on a particular faith.

GM schools used this freedom in as wide a variety of ways as their motives for taking that option. Those schools that became foundation schools from being grant maintained brought their admissions arrangements with them. Those schools that have opted for a change of category have adopted their admission arrangements at that point.

Admissions in practice
Control of admissions by foundation schools, as with voluntary aided schools, is not in any way absolute. In fact, while some outsiders believe that this power is radically distorting the admissions system, some foundation schools believe it has been so eroded as to be virtually meaningless.

Admissions policies of foundation schools, like the admissions policies of all other maintained school admissions authorities, are subject to scrutiny by the local admissions forum and governors must ‘have regard to’ the admissions code of practice.

‘Have regard to’ is not just an empty formula. It means that good reasons must be shown why the code has not been followed. Policies must be circulated for comment to all neighbouring schools and admission authorities. They may be objected to and referred to the adjudicator. If this happens, the adjudicator can order the school to change its policy, and, subject to judicial review, the school must comply. The school is responsible for setting up an appeals process and, if it is unfair, the school may be subject to a finding of maladministration by the local government ombudsman and may be forced to make restitution to the parents concerned, including financial compensation.

GM schools were allowed to select up to 10% of pupils by ability or aptitude. This was not a high proportion and was, in practice, rarely used. Where it was used, this was mostly done to ensure that a school that was nominally comprehensive was not made into a secondary modern by having pupils creamed off by existing, or former, grammar schools. Under the 1998 Act this was allowed to continue where it already existed; but adjudicators have generally eroded or got rid of it (despite one successful High Court challenge).

Behind the headlines
The vast majority of foundation schools, however, retain an admissions policy that is in all essentials the same as the one that they had as local authority schools and often in all particulars is the same as those of neighbouring community schools.

In a number of cases that may seem surprising to those who have only read the headlines, schools that have changed category since the 1998 Act have done so to retain an existing policy which the local authority wished to change. The change would have meant that parents who had traditionally sent their children to the school would no longer be able to do so.

Some schools have had a provision to admit the children of staff. The reasons for this varied and some teachers and other staff might have felt that the last thing that they wanted for their children was to go to the school they worked in. However, it has been valued by others and is seen by some schools as an important staff recruitment tool. This has also been challenged by adjudicators. There is a view that it could (though very marginally) act indirectly to discriminate, but the main ground for the adjudicators’ attitudes seems to be a general prejudice among adjudicators in favour of a school drawing only from its neighbourhood.

This is questionable as a policy in cases where the mix of pupils in an area is such that it is unlikely that there will be enough aspiring or able children in the school – or supportive parents behind them – to enable the school to maintain an ethos of achievement. In that situation it may well be that steps to make sure that the school is not fully representative of its neighbourhood offer the best hope for the success of the school and the pupils in it. This lies behind the drive towards what is called ‘fair banding’. The adjudicators, however, see it otherwise.

Illuminating issues This conflict of views illuminates the issue of the consequences of having schools as admission authorities. The figures seem to be unequivocal: that schools that are their own admission authorities do not admit children from vulnerable groups in the same proportion as these children are present in their communities.

In the case of faith schools, this is not altogether surprising. In Britain today, faith tends to be associated with aspiration and a more stable lifestyle, and deprivation with an unstable lifestyle. But non-faith schools may have taken a conscious view that the concentration of unaspiring children in a community makes a community base for a school a recipe for educational failure. In those circumstances a policy to dilute the degree of deprivation in a school may have a positive social purpose. It is a difficult issue.

In other respects, the power to control admissions is under the same constraints as other schools. They are required to give priority to ‘looked after children’ and they are part of the coordinated admissions scheme for the area.

Despite all the constraints placed on them, foundation schools do seem to value this power. They feel that it means that the parents who send their children to them have made a more positive step to join them, even when the school has a neighbourhood catchment area policy. They feel also that it is one more way in which governors are drawn into real decision-making in the school.

The overall picture
In general, then, schools that have become foundation schools seem to believe that they have a higher level of staff commitment and a more direct relationship between staff and the school because they employ staff directly. They have a more balanced governing body because the additional responsibilities for staff and the school estate encourage governors to believe that there is a real job to do. Governors tend to have a more business-like approach to their work and to be clearer as to the functions that they are carrying out and that the school leadership team are carrying out. On the whole, it is more common to find standing orders, financial regulations and school-derived asset management planning in foundation and aided schools.

Above all, they believe that autonomy is its own stimulant to better governance and management. (This contrasts with the present government’s view that autonomy is something to be earned by better governance and management.) They tend to be more willing to go outside the local authority for services where they do not think that local services are up to scratch.

While the vast majority of foundation schools work closely with the local authority, they feel that they have a little more room to move and are less smothered by the local authority’s embrace. Their charitable status, too, enables them to approach businesses without the potential donors feeling that they are filling a funding gap that the government or the local authority ought to be dealing with.

Threats in view
The autonomy that is enjoyed by these schools is not only under attack from those who believe that there should be uniformity of control in the system. There are also unintended consequences from other government policies.

Building Schools for the Future is welcomed for the capital that is being put into schools. However, the decision by the DfES that the programme could only be run locally by a partnership between Partnerships for Schools and the local authority is seen as a threat to the control of premises by governors. At worst, governors could find that buildings are put on their site to a specification they do not want and in a place where they do not want them built.

Rhetoric about the need to consult schools is seen as a poor substitute for control, particularly by schools that have successfully managed major building projects and brought them in to time and to budget – a feat not always achieved by local authorities.

PFI is a further threat, in this case, to the control of staff. The attraction of employing one’s own staff is diminished if critical janitorial and cleaning staff are once more removed to a contractor’s control.

A further perceived constraint on developing the school as desired is 14-19 collaboration, particularly through cartel arrangements post-16. While the collaboration agenda is seen as inescapable and indeed desirable for the development of opportunities for children, it is undoubtedly a constraint on autonomy and it will be watched to see if it is simply a means of reasserting local authority control over schools’ development.

‘Trust’ schools Will trust schools supersede foundation schools? The idea of a school, or series of schools, run by a trust has an attraction to the DfES, which prefers to have a fellow bureaucracy to talk to, rather than talking directly to a school. From that point of view, foundation schools are ‘masterless’ and so suspect.

As with voluntary aided schools, trust schools will have a body that oversees the governors and the school. The trust will not necessarily be faith-based (though it may be) and it will not have to produce 10% for buildings. It will provide another means of linking strong and weak schools where federation does not seem to be an adequate approach.

The distinctive feature is governance. As with voluntary aided schools, the trust will control the governing body and it may run more than one school. The advantages of the governance arrangements are that it will be possible to ensure effective governing bodies in communities where the community leadership is weak and where people are incapable of taking on the duties of governors because they are too much under the stress of life in the community.

The trust will also provide an element of continuity that existed in grant maintained schools through their ‘first’ governors, who were subject to no limitation of their period of office, but which was lost under the 1998 Act. There will always be arguments over whether the need for continuity justifies a ‘self-selected oligarchy’ being in charge of schools, but the two-step approach envisaged in the trust, which will own the school, and the governors, who will govern it, seems to be a reasonable compromise.

It is too early to say whether many foundation schools will move to ‘trust’ status. The likelihood is that some will see it as a way to make their position more secure. However, others, whose governors are used to control of their buildings and staff, may see it as a diminution of freedom rather than an increase.

The future
In a world where a year without an Education Act is seen as an anomaly, it is hard to be sure what the future holds. There will continue to be some who believe that there cannot be a true family of schools in an area unless they are all under the direct control of the local authority. There are still some who continue to believe that the only solution to the issues of education in England is total autonomy for schools and the free play of market forces.

Most people in education see a play between autonomy and coordination as the correct solution and differ only as to where they place the boundaries of autonomy on the one hand and coordination on the other. Foundation schools and voluntary aided schools do seem to fit into the mix well and, if future decisions are made on pragmatic grounds, are likely to survive.

Richard Bird was a headteacher for 21 years before taking up his current position with the Association of School and College Leaders. In this capacity, he gave evidence to the Bichard Inquiry and has been involved in coordinating the association’s response to it.