BOROUGH OF POOLE

CHILDREN’S SERVICES CAPITAL PROGRAMME BOARD

29NOVEMBER 2012

ACADEMY TRANSFER – CARTER COMMUNITY SCHOOL

REPORT OF THE SCHOOLS PROJECT DIRECTOR

PART OF THE PUBLISHED FORWARD PLAN YES

STATUS: STRATEGIC

1.PURPOSE OF THE REPORT

1.1To advise Cabinet and Council on their decision to pass assets and obligations to the Carter Academy Trust and the sponsors of that Academy, United Learning

2.RECOMMENDATIONS

2.1Elected Members are asked to consider and advise on the following recommendationsto Cabinet that:

a)The land indicated within the area marked by a redline on the map at appendix B is assigned by the Council to the Academy Trust under a 125 year lease arrangement.

b)The current leases and obligations on the buildings and land,marked as shaded and hatched boxes, are assigned by the Council, with the agreement of the Academy Trust, as on the map on Appendix C and Appendix D and its related table

c)The Council proceed, as planned, to complete the tendering process for the Age of Transfer related works and follows the advice given by its legal department with respect to its responsibilities during the completion of the capital build, continuing as the employer and transferring its responsibilities at completion or after the defects period.

d)The Council accept that it has an obligation to pass the building to the Academy Trust and Sponsor in a state of repair which does not include any identified Priority 1 works, some of which have already been identified in the roof of the school. That obligation to be met within the Capital Strategy 2013-16 (although the project could be enhanced by academy donation) and self managed.

e)The Council set a precedent, in line with its own duties, by not indemnifying the Department of Education, the Academy Trust or the Sponsors from obligations that are theirs in law or through their actions in choosing academy status as the way forward for Carter Community School.

3.PROJECT GROUP RECOMMENDATIONS

3.1Transfer of assets: land and buildings (see Appendix B)

  • Work co-ordinated by Ian Johns with the support of the Estates Team, Steve Stewart and Legal and Democratic Services, Diana Goldsmith.
  • Consultations with those listed (Appendix A)
  • Area within the redline is recommended to be assigned to the Academy Trust and Sponsor in line with the report (Appendix D)

3.2Transfer of obligations: leases and rights of access

  • Work co-ordinated by Ian Johns with the support of the Estates Team, Steve Stewart and Legal and Democratic Services, Diana Goldsmith.
  • Consultations with those listed (Appendix A)
  • Shaded and hatched areas indicate current agreements to be assigned to the Academy Trust and Sponsor or retained by the Council in line with the report (Appendix D and its related table)

3.3Maintaining the Capital Project necessary to conclude the Age of Transfer

  • Work co-ordinated by Stuart Twiss with the Carter Capital Project Board including the school, the sponsor and Legal and Democratic Services, Diana Goldsmith.
  • The Capital Programme Board has already given its authority to proceed with this small project. Tenders have been issued.
  • The recommendation on how to handle the transfer of obligations and responsibilities for the contract to be made with a future contractor, (expected before April 2013) is based on advice taken from Legal Services as follows:
  • The Academy Trust or sponsor would need to express a view that they want the council to carry out the works.
  • If that is given, then a partnership agreement is needed with the Academy Trust or sponsor, such as that used to govern the works at St Edwards. N.B. A draft agreement on this basis has been created.
  • The Council will therefore need terms in the long term lease giving consent for the works and either a licence under the lease to remain and complete and novate or a short-term lease to cover the remainder of the works period. The Academy Trust or sponsor would take over either on practical completion or after the defects period.

3.4Ensuring the building is passed to the Academy Sponsor with any priority 1 maintenance issues addressed or funded

  • Work co-ordinated by Stuart Twiss with Nicola Keynes, Martin Moore and Hugh Lambourne as part of the Capital Strategy.
  • During the survey work undertaken as part of the Age of Transfer project, priority 1 works have been identified: chiefly a leaking roof.
  • The works had not been identified in previous surveys and therefore are an addition to the current Capital Strategy. The minimum remedy will be costed within a future Capital Strategy.
  • The Capital Strategy for 2013-16 will be presented to members for approval in February 2013 and therefore the works are unlikely to be given to a contractor before the transfer of responsibility to the Academy in April.
  • Members should note that the Academy Trust and sponsor are given sums for capital works, chiefly to make noticeable improvements to reflect the new status of the school. There are also opportunities, only afforded to academies, to bid for further capital grants. These grants could be used by the Academy Trust or sponsor to enhance any works costed by the Council to remedy the Priority 1 needs.
  • The Academy Trust and sponsor will have the responsibility to maintain the building and therefore will be invited to manage any Priority 1 building project; which may have a budget built from Academy and Council funds. This is similar to the Foundation School managed projects such as those at Poole High undertaken as part of the Age of Transfer.

3.5Ensuring the Council does avoid obligations that it does not have in law by not signing indemnities for other parties such as the Department for Education, Academy Trust or sponsor.

  • Work co-ordinated by Stuart Twiss with John Nash, Nicola Webb, Gaynor Cupper and Diana Goldsmith
  • The Council has previously faced an implied obligation to fund compromise agreements for staff at St Aldhelm’s Academy, in advance of and contrary to its TUPE obligations. The Council was placed under significant pressure by the DfE to meet this obligation but was partly protected by not having signed agreements to indemnify the DfE and sponsor from their obligations.
  • The Council has been invited to sign that it accepts the following obligations; copied below from Section 4 of the AAP:

Section 4:

Please note that by agreeing to the section below, the LA is accepting legally binding obligations.

Does the LA confirm that:
(a) if the Academy opens, it will indemnify the trust established to operate the Academy ("the Academy Trust") in respect of all costs and liabilities which transfer to the Academy Trust under the Transfer of Undertakings (Protection of Employment) Regulations 2006 and which relate to the period prior to the date when the Academy opens, including without limitation the costs arising out of any equal pay claims relating to that period;
(b) subject to (d) below, it will be solely responsible for all costs and liabilities, including without limitation any notice, severance, redundancy or associated pension costs, which arise in connection with or as a result of any restructuring carried out by the LA, the Governing Body or the Academy Trust which relates to:
• the Academy inheriting staff from more than one school;
• the Academy operating on fewer sites than the predecessor school(s);
• the Academy offering fewer places than the predecessor school(s);
• the predecessor school(s) being overstaffed; and/or
• the predecessor school(s) running at a deficit
(c) subject to (d) below, it will be responsible for 50% of any notice, severance, redundancy or associated pension costs reasonably incurred by the Academy Trust or in relation to the opening of the Academy in the period preceding the date on which the Academy opens and which do not fall within (b) above.
(d) The LA and the Academy Trust shall co-operate in planning and effecting any restructuring or redundancy referred to in (b) and (c) above and the Academy Trust shall consult the LA in relation to any proposed redundancy and restructuring.
In consideration of the above promises, the Department agrees to be responsible for the balance of 50% of the costs referred to in (c) above.
The LA hereby confirms that it is bound by these indemnities and that the Academy Trust will be entitled to enforce them against the LA as a matter of contract. / Agreed
  • It is advised by HR and our legal department that the Local Authority is already bound by significant obligations as the transferor under TUPE and that the Academy Trust has related obligations as the transferee. Additional obligations do not need to be taken on.
  • Members are assured that the officers of the Local Authority should (and do intend to) act in line with their current obligations to ensure that there are no outstanding issues in any maintained school such as ‘overstaffing’ and ‘deficits’ and to its knowledge these matters do not apply at Carter Community School.
  • The test for what would be considered as ‘costs reasonably incurred by the Academy Trust’ as set out in c) above would not lie with us, in effect we could be signing half of a blank cheque.
  • In addition Council should be mindful of the precedents it is establishing which may affect its liabilities in future Academy conversions such as at Ashdown Technology College.

4.NEXT STEPS

4.1Officers have drafted heads of terms for the recommended actions pertaining to land transfer and leases and will progress these into detailed agreements and leases for the relevant parties if the proposals are accepted.

4.2The Academy Action Plan (AAP) must be submitted by the sponsor to the DfE. The sponsor should gain the agreement of the Local Authority to the AAP. The sponsor has a deadline to meet to enable the transfer to Academy status to take place on April 1st 2013. Currently the AAP has been submitted in draft to the sponsor. (Appendix E)

5.RISK MANAGEMENT IMPLICATIONS

5.1There remains a risk that the Academy Trust or sponsor may not accept the proposal for the redline, in particular:

  • The proposal that the Academy Trust or sponsor take on an obligation for the access road between the Library and the school.
  • The proposal that the Academy Trust or sponsor accept the Council’s continuing interest in the grass triangle and Children’s Centre at the East of the site
  • The proposals for the continuing provision of 10 parking spaces to LA services, required as part of planning permission for the Library and Children’s Centre

5.2There is a risk that the proposal for the Academy Trust or sponsor to take the re-assigned lease for the Neighbourhood Nursery is refused and the sufficiency duty of the Council is hindered. (See Appendix D, section 2.3, Option 1)

5.3There is a slight risk thatthe proposal for the Academy Trust or sponsor to accept the Safer Neighbourhood Team is refused and the needs of a partner is not met.

5.4There is a risk to the Council from a shortage of resources in the estates and legal services departments which have come under pressure through this and other projects. The additional work required to establish, with clarity, the leases and agreements can be hindered by being rushed or not assigned to officers with appropriate skills.

5.5There is a significant financial risk from academy conversions in the future if the Council sets a precedent for indemnifying the DfE and Academy Trust itself from their obligations by signing all aspects of part 4 unaltered.

5.6There is a reputational risk to the Council if the progress of the Academy conversion is impeded by not having regard to the interests of the children and the school when under its new governance by the Academy Trust or sponsor. This applies especially to our obligations to transfer the school in a fit physical, professional and financial state (which we believe we will be able to do)

5.7There is a slight risk that our good relationships with the school and sponsor will be damaged if the Council’s wishes are at significant odds with them and no consensus can be reached.

  1. CONCLUSION

6.1The proposals put forward by officers have been widely consulted on and then confirmed by Management Team. They will help the school to convert to an academy whilst protecting the Council’s interests.

6.2Although significant ground work has been put in by officers there is not a long time for members to come to their decision if the deadline given by the DfE and the sponsors is given a high priority by the Council. The decision carries significant risks for future academy conversions.

6.3Positive relationships with the school, the sponsor and site users have been maintained and there are no impediments intended through the proposals to either children’s education, or academy transfer.

John Nash

Schools Project Director

Contact:

Stuart Twiss

Head of Strategy, Quality and Improvement

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