Who is responsible for what? When do you delegate — and where do responsibilities overlap? Richard Gold explains.
LEGAL STATUS
The governing body of every state school is a statutory corporation, which is similar to a limited company in the sense that it is a separate legal entity that can enter into contracts, and sue, and be sued, in its own name.
The importance of this cannot be over-stated. This is what protects governors from having personal liability to, for example, pay salaries or the school electricity bill. When we talk about ‘the school’ what we actually mean in legal terms is ‘the governing body of the school’.
LIMITS OF POWER
The governing body has overall responsibility for the conduct of the school. But the governing body’s power is limited by law, because responsibility for the day-to-day running and management of the school is the sole province of the head teacher.
Indeed, it is arguable that, although the legislation provides that the conduct of the school is ‘under the direction of’ the governing body, the governors ultimately have no power to direct the head teacher to take any specific action in relation to the running of the school.
Delegated responsibility
The head teacher must comply with reasonable directions on matters delegated by the governing body. It is important to note, however, that the designation of management responsibility to the head teacher is not a delegation — but a direct statutory conferring of power without qualification.
Clear demarcation lines
This conferring of power directly to the head teacher is not an error or an oversight — it facilitates smooth running of the school.
Why? Generally, running a school is a job for a professional and the professional must be given the freedom, formal as well as actual,
to get on with it. In this way, there will normally be no doubt where responsibility lies in the event of failure.
Try not to interfere
If a school is under-performing, there will be a natural tendency, especially in small schools where everything is so much more immediate and personal, for governors to want to try to put the world to rights. The temptation must be avoided.
First, this may deflect responsibility from where it should rightly fall. Second, governors who interfere in day-to-day matters put themselves at risk if things go wrong as a result of their intervention.
WHO IS RESPONSIBLE FOR WHAT?
In broad terms, the governing body has responsibility for the strategic direction of the school, and for monitoring and evaluating what happens in the school. It sets the broad parameters within which the school operates, including the school’s aims and objectives.
But this process is kick-started by the head teacher, who is required to formulate aims and objectives and policies and targets. Again, this is logical: the governing body cannot be assumed to have particular expertise — so it needs to be guided by the head teacher.
This principle is carried forward into other areas:
- For example, it is the head teacher’s responsibility to formulate the school’s behaviour and discipline policy, but within a framework of broad principles laid down by the governing body — if it so wishes.
- Similarly, the head teacher formulates the secular curriculum policy for the governing body to consider.
A ‘CRITICAL FRIEND’
The relationship between the governing body and the head teacher is critical to success. Indeed, using the word in its alternative sense, the governing body is required to act as a ‘critical friend’ to the head teacher, supporting the head teacher in the performance of his or her functions, and giving constructive criticism.
‘Critical friend’ is not the easiest of concepts — even allowing for the idea of a corporate (and therefore impersonal) entity discharging such a task.
Constructive criticism
Support is easy to give. Delivery of constructive criticism is harder. How is the content of the criticism arrived at — a debate at a governing body meeting? Not conducive, one might think, to the head teacher’s
self-confidence. How should it be delivered — a written note? How else, if it is from the governing body?
Supportive but questioning
Fortunately, these lawyerly quibbles seem not to cause problems in practice — and the expression ‘critical friend’ is generally interpreted (if it is applied at all) as requiring support from individual governors — but not uncritical, unquestioning, support.
Governors need to feel comfortable that, even if they disagree with specific decisions, the school is moving forward in the right way. And governors must feel at liberty to make their feelings known (courteously and with a degree of reticence) to the head teacher. This is probably best done via the chair of governors, if individual governors are not comfortable doing so on their own account.
UNITY AND INDIVIDUAL DISAGREEMENT
There are likely to be many occasions when an individual governor will not agree with what the governing body does, or proposes. But a decision by the governing body is a decision: it may be debated vigorously at a meeting but once it is taken, it binds the governing body and all governors.
There are few things more debilitating to the overall confidence of a school than to find individual governors briefing against a decision that has been made — or disassociating themselves publicly from it. It may have been passed by the narrowest of majorities but both democratic principles and pragmatic management require that it be accepted by all.
Confidentiality
Confidence in the governing body, and the ability to speak at meetings without fear, require that confidentiality be observed during those meetings.
Decision reversal
There is a mechanism for reversing a governing body decision. This mechanism is deliberately formal — but it does exist, and covers
those situations where it may be appropriate to reconsider what has been done.
The protection for the minority is the provision that a governing body meeting must be convened if three governors request it.
COMMITTEES WITH DELEGATED POWERS
A similar decision-reversal principle applies to decisions made by committees of the governing body. The workload is too great for everything to be dealt with in a full governing body meeting and, anyway, a meeting of perhaps 20 people is not the best forum for dealing with detail.
The practice, therefore, is to set up committees with delegated powers. Most schools will have at least a finance committee and a personnel committee — although the labels may be different.
Committees must have authority to make decisions. They are required to report to the next full governing body meeting — but this is reporting, not seeking ratification. Once a decision has been taken, it should not be picked over.
Governors not on the committee in question need to trust their colleagues who are on the committee. In any case, it may be too late: the employee has been employed, for example, the building contract put in place, and the equipment bought.
All decisions are valid and binding if they are within the terms of reference of the committee. Even where a decision is taken outside a committee’s remit, if third parties have acted on it, it will probably be too late to reverse it.
INTERPLAY BETWEEN STRATEGY AND MANAGEMENT
The neat division between strategy and management is not quite as tidy as it appears. Some decisions, typical of governor involvement, seem to fall within the management remit of the head teacher and no doubt could have been taken and implemented without reference to governors. So where do you draw the line?
The wise head teacher values and nurtures his or her governors — not least because they come as a free resource with their own skills and expertise. Head teachers may find it useful to refer the details of decisions they are making to the governors for discussion. The quality of the decision may be improved as a result.
Some decision-making — appointing senior staff is an important example — may be shared with governors. It is a good way to work, so long as the head teacher does not shirk responsibility by insisting on governor decisions where this is not appropriate — and so long as governors do not try to manage the school.
Ideally, the process is a discussion between head teacher and governors, as a result of which the head teacher makes a decision — not necessarily the original one — and the governors endorse it.
THE CHAIR OF GOVERNORS
The position of the head teacher, who often will be an ex-officio governor, is a pivotal one. So is that of the chair of governors. Technically, the power of the chair to take executive action is highly circumscribed — unless the governing body delegates a general power to act, which is generally not good practice.
In theory, if a decision has to be taken, the chair should convene a governing body meeting unless the needs of the school require urgent action before this can be done — ‘seriously detrimental’ is the expression in the legislation.
In practice, a good chair will influence, if not actually take, many decisions by virtue of the constant dialogue that takes place between the chair and the head teacher.
The critical friend concept applies most obviously to this dialogue. It does, though, bring its own dangers. The relationship can become cosy and governors need to be alert to the possibility that the flow of information may be inappropriately controlled by the chair and the head.
In some ways, the chair and head resemble the filter in a coffee-maker. Unless the governing body has alternative ways to monitor what is happening, only that which the head teacher and chair want them to know will pass through the filter.
Governors should not be unduly suspicious but should be aware of the need for external verification — exam results, admission trends, deprivation indicators, budget and expenditure figures are examples — and understand how to use them.
Local authorities offer training to governors, especially new ones, which should tackle this concern.
PERSONAL LIABILITY
We will look, finally, at the vexed issue of the personal liability of governors. Whilst this is a subject that causes much anxiety, unless an individual governor is fraudulent or reckless, there can be no such liability — even though decisions sometimes prove wrong, occasionally catastrophically so.
This is the principle lying at the heart of corporate responsibility.
The standard of care Governors do need to take care, but the applicable standard is the ordinary prudence of the ordinary person. The key is to be aware of what you don’t know (an awareness that seems to grow with age) and to take important decisions without haste and with proper professional advice.
Often, that advice will come from the head — but remember that s/he is an expert educator, not a financier, surveyor, human resource consultant or physician, even though the demands of the job seem to require all these skills and more.
Governors should take independent advice over the big decisions, keep in mind that their responsibility is to do what is reasonably in the school’s best interests, refrain from meddling — and sleep well at nights.
Richard Gold is head of education law at Stone King LLP.
FIND OUT MORE
National Governors Association provides information and advice, and offers a range of publications, including good practice guides. Download them from: www.nga.org.uk
Information for School and College Governors is a non-profit organisation that ‘exists to help governors to do their best for their schools and everyone in them. We provide governors with practical advice, independent and up-to-date information and relevant services’. You can find them at: www.governors.fsnet.co.uk
DfES website, Governornet, has a broad base of information, including advice on governance and the law. You can access the site at www.governornet.co.uk
For general information on governor training, advice and support, visit the DfES management A-Z on Teachernet — you can find this at www.teachernet.gov.uk/management/atoz/g/Governor_training