In a new report, Fulfilling potential, the business role in education, the UK’s largest employers’ body, the CBI, welcomed the coalition government’s reforms for expanding the number of academies and enabling new schools to be set up, which it considers should lead to greater innovation in the classroom.

However, the CBI is calling for the government to promote more federations, or ‘chains’, of schools created to help drive up standards where individual schools are failing or coasting.

This article considers the structures and processes surrounding different types of federation and collaborative working available under current law and policy, the various different reasons for adopting such models and the role of federations under the new coalition government.

What is a federation?

The term ‘federation’ is often used to describe a wide spectrum of partnerships and collaborations, which may or may not involve structural changes in leadership and management. When used in a legal sense it is aimed at those types of collaborative arrangements between schools which also include the schools sharing some or all of their governing body responsibilities.

Federations can involve different types of schools and include, for example, ‘cross-phase’ federations (primaries and secondaries), ‘size’ federations (very small or small and medium-sized schools) and ‘performance federations’ (low and high-performing schools).

Where the schools involved are both maintained schools, they may wish to make use of the statutory joint governance arrangements provided for under the Education Act 2002 and form either a ‘hard’ federation or a ‘soft’ federation (sometimes referred to as a collaboration).

A maintained school cannot use these models with other educational establishments, such as academies or universities. However, this does not preclude other types of joint working.

Academies may federate with other academies (and in doing so are often referred to as groups). The Education Act 2002 does not apply to academies in this respect but the driving forces for a federation may often be the same.

These models are considered in further detail below.

Hard federations

In a hard federation, two or more maintained schools come together under one governing body. A hard federation should be distinguished from a merger as, in a federation, each school will retain its own separate registration and, for example, its own admission arrangements. Schools within a federation will also retain their own category (for example, community/foundation/voluntary aided) and need not be of the same category.

Schools within a federation are inspected separately and have their own self-evaluation forms. It is possible, however, to ask that schools within a federation be inspected at the same time by the same Ofsted team in order to evaluate the work of the federation properly. In any event, performance information is only published for schools individually.

How is a hard federation formed?

When a school proposes to federate with another school, its governing body must first consider a report on the proposal at a meeting at which proper notice of the matter has been given.

The schools involved are then required to consult with stakeholders (such as the local authority, staff and parents) and jointly to publish statutory proposals, which must set out specified information. It is advisable to consult with the local authority before carrying out this consultation process.

Where staff in a school are employed by the governing body (ie a foundation or a voluntary aided school) the unions will also need to be properly consulted on the transfer of staff to the new federated governing body.

The governing bodies must then jointly consider any responses received to the proposals before separately determining whether they wish to proceed. If all of the governing bodies wish to proceed, a new instrument of government will need to be prepared and submitted to the local authority. (It is possible for schools in different local authorities to federate).

On the federation date, the previous governing bodies will be dissolved, a new federated governing body is established and any assets (such as land and property) and all rights and liabilities of the former governing bodies will vest in the new federated governing body.

What if it goes wrong? It is possible for a school to leave a federation by following a specified process. This process can be triggered by a number of specified stakeholders (including governors, parents, staff and the local authority) who can require the federated governing body to consider the request for the school to leave.

Soft federations or collaborations

In a soft federation, governing bodies of maintained schools agree to discharge some of their functions jointly via joint meetings and a joint committee. Again, these provisions of the Act only apply to maintained schools.

Under this model, a joint committee acts under delegated powers from the respective governing bodies. The governing body of the school retains responsibility for the school (in the same way that it would were it to delegate a function to any committee) and should therefore ensure that it receives regular reports from the joint committee.

The regulations which relate to soft federations prescribe some of the terms of the committee (in the same way that the 2003 Procedure Regulations do for standard committees) and the respective governing bodies should review the constitution, membership and terms of reference of any joint committee annually.

In some circumstances (although not always), a soft federation is a step towards a hard federation.

Federations of academies

Federations, or ‘groups’, of academies are in some ways similar to hard federations for maintained schools. In a federation of academies, the charitable company, known as the Academy Trust, operates a number of academies. Separate ‘local governing bodies’ or ‘local councils’ are then established in order to oversee the local arrangements for each academy.

Each academy will have a separate funding agreement (which sits below a main federated funding agreement) and, as with a school in a hard federation, will be registered and inspected separately. It is possible for the funding agreement to provide for funds received to be restricted to use by the relevant academy, or alternatively, that there may be cross use of funds in specified circumstances.

High profile federations of academies include the United Learning Trust, Oasis Community Learning and the Harris Federation.

The incentives for federation

The main incentives for forming a federation are often to share expertise and resources in order to improve students’ attainment and to benefit from operational efficiencies. The various aspects of this are considered in further detail below:

School improvement – the quality of teaching and learning
A study commissioned by the National College for Leadership of Schools and Children’s Services, published in 2009, looked at the impact of federations on student outcomes. The study concluded that federations can have a positive impact, particularly those referred to as ‘performance federations’ where higher and lower-attaining schools are federated.

Whilst shared governance is not a prerequisite for schools working together, the model lends itself well to it. In addition to the improvement of teaching in the classroom, it can also lead to the extension of the range of extended school activities offered to pupils.

Leadership capacity and effectiveness
Many federations will put in place an executive head, who is charged with taking the strategic lead in the development of the schools, tackling underperformance and disseminating best practice. These individuals will generally be proven leaders in school improvement and are described as ‘experienced leaders who are looking for a new challenge’.

Generally, executive heads are then supported by headteachers or ‘heads of school’, who have control of the day-to-day running of the school. Whilst it is possible for schools to share an executive head without sharing a governing body, the model does lend itself better to an arrangement with a joint governing body.

Not all federations will involve an executive headship. Some retain the conventional model of one headteacher per school. This brings the opportunity for two heads to work together and (to the extent permitted) share responsibilities and workload, thereby generating capacity and making best use of the strengths and skills of each headteacher.

Federations can also be used to extend the remit of a successful governing body. As with the executive heads, where a governing body has been instrumental in instigating change for improvements or maintaining high standards, they can work alongside (or in place of) weaker governing bodies to secure improvements in the weaker school.

Opportunities for staff and succession planning
Some federations have seen a positive impact on the quality of continuing professional development as the partnership enables staff to share best practice. It also enables staff to engage in broader roles across schools, giving invaluable experience to middle managers. It can also offer the opportunity for staff to have greater exposure to a variety of professionals who work within the school and its extended circles.

In developing the school’s own staff, some federations have seen the benefits of developing middle leaders for future headships within the federation. This can be invaluable for areas in which it may be difficult to recruit.

Operational efficiencies
Any schools which work together may be able to increase their purchasing power and generally secure efficiencies through economies of scale. In some situations, this may enable schools to procure services which they would on their own be unable to obtain.

Schools might also want to work together to recruit a shared appointment. This could be particularly useful for curriculum specialists and also extend to operational staff, such as an experienced finance director, to oversee operations in both schools.

Under a hard federation and in an academy federation, schools’ funds should be retained as separate budgets (save where an academy funding agreement permits cross use) and mechanisms must be put in place to provide an audit trail for each school’s budget. However, this does not prevent the pooling of funds by top-slicing the delegated budget to a joint budget.

Dealing with falling pupil numbersMost secondary schools are conscious of the need to work with their feeder primaries, not only to ensure pupil numbers transferring but also with a view to giving pupils a smooth transition. It is possible that this relationship can be facilitated more closely within a formal federation. With this may also come a number of benefits to primary schools, such as the availability of facilities and operational efficiencies.

The future of federations

Despite education being one of the key battlegrounds for all parties in the run up to the election, neither the Conservative party nor the Liberal Democrats identified collaborations between schools as being central to their policy.

It is clear, however, that stronger schools, and particularly those ‘outstanding’ schools that have been invited to convert to an academy, will be expected to work with a weaker school to secure improvements.
In addition, schools and local authorities (particularly in areas with a high number of academy converters) are likely to see a drop in funding over the next few years. This is likely to have a strong impact on how services are procured and it is possible that collaborations will be key in mitigating the impact of that loss of funding.

The authors are education lawyers at Veale Wasbrough Vizards, where Barney Northover is a Partner and Chloe Brunton a Senior Staff Solicitor