ANNEX 1
GUIDANCE NOTE FOR GOVERNING BODIES
The Academy option is very new and represents a fundamental, and probably irrevocable, change of status for a school. Due diligence is vital.
This note provides Governing Body members and the members of the Chichester Diocesan Board of Education with a detailed ‘checklist’ of the range of matters which they will need to consider in reaching their respective decisions about the likely benefits of Academy status for any particular school. It reflects the Chichester Diocese’s requirements as set out in its ‘Policy on Conversion to Academy Status’. As a comprehensive ‘aide memoire’, it also provides a list of key issues that is intended to support the exploratory work and subsequent consultation and decision-making processes. It will be kept under review and updated in the light of experience.
There are currently three types of Academy:
- ‘Intervention (Sponsored) Academies’ - the Secretary of State has the right to convert schools which are “eligible for intervention” without Governing Body agreement or application. Most local authorities believe that in these cases it is better to work with sponsors to determine the best possible opportunities for children and young people. If this occurred in a C of E school, the diocese would expect to be the Academy Sponsor.
- ‘Conversion Academies’ – this status was initially available solely toschools that are rated outstanding or good with outstanding features by OFSTED. The governing body, following considerable discussion and consultation, can resolve to seek the Secretary of State’s approval for it to convert to an Academy. However, for all Church schools, the prior consent of the Diocesan Board of Education and any others who appoint foundation governors is required. A ConversionAcademy is no longer required by the Department for Education (DfE) to give support to a school that is underperforming.
- ‘Free Schools’ – this route is for community groups wishing to establish new schools or for existing independent schools wanting to enter the Academy sector. Once opened, a FreeSchool is run under the Academy framework as an Academy.
Academy Conversion Guidance March 2012Page 1
Academy Conversion Guidance March 2012Page 1
A / INITIAL CONSIDERATIONS / √ / ̶ / OUTCOMES / NEXT STEPS1. / What educational benefits would there be for your pupils from Academy status?
This should centre upon pupil attainments and preparation for adult life. In addition, governors can use the ‘ready reckoner’ on the DfE website to examine the likely financial implications of conversion. Consider whether you have the capacity and expertise to take on the management of a wider range of services. Explore the pensions issue carefully. Use the standard Church of England documentation on the DfE website to explore all governance and property issues. Consider how the DfE lump sum grant towards conversion costs (currently £25,000) could best be used. Seek Local Authority and Diocesan advice whenever necessary.
2. / How will the school plan and manage the conversion process, including the buying in of the necessary resources to support the process as necessary?
All costs (including those of the school’s Trustees and DBE/DBF) such as those relating to making the site and other assets available, transfer/assignment of any extant leases/licences/transfer of control agreements/hiring agreements or tenancies at will should bemet in full by the school, whether or not the conversion process goes ahead. This should be undertaken on a standard commercial basis whereby the completion of all legal agreements is dependent on the payment of all outstanding costs. Schools are expected to meet interim invoices, including legal fees and for Diocesan staff consultancy support time, during the conversion process. This will include all costs incurred even if the governing body ultimately decides not to proceed with Academy conversion.
3. / The Chichester Diocese reserves the right to make a charge to schools for any additional support provided in relation to Academy conversion (paragraph 2, bullet point 19 on page 3 of the DBE’s policy document, February 2011).
See D7 on page 9 of this Annex.
A / INITIAL CONSIDERATIONS cont’d. / √ / ̶ / OUTCOMES / NEXT STEPS
4. / The school’s overall case for conversion will be assessed in the light of the following key questions:
i)What would be the long term benefits for the school and the communities it serves if it becomes an Academy?
ii)What are the main risks of becoming an Academy and how will they be managed?
iii)To what extent would the school’s Christian distinctiveness be enhanced by the proposed change in status?
iv)How would the change affect relationships with other local schools and parishes?
v)How and from whom would the Academy secure the advice and support it needs, including services previously provided by the local authority, without detriment to pupils and families with additional needs and other local schools?
vi)What are the implications for governance, staff retention and recruitment and conditions of service?
vii)How will the governors address the key aspirations and concerns raised during consultations?
B / CHRISTIAN DISTINCTIVENESS / √ / ̶ / OUTCOMES / NEXT STEPS
The DBE is particularly concerned to protect the Christian character of converting schools. Schools will be expected to provide all necessary assurances in seeking the DBE’s approval for their proposed change in status.
1 / In what ways will the new Academy seek to promote and develop its Church of England character in partnership with the DBE, local deaneries and parishes?
2 / How will the new Academy engage with the wider family of Church schools and local community schools?
3 / How will the Academy use its new freedoms to strengthen RE and Collective Worship in the Anglican tradition, ensuring that they continue to reflect the latest guidance issued by the DBE?
The Academy will fall within the provisions of the Diocesan Boards of Education Measure 1991 as amended by Schedule 7 to the Education Act 2002.
As a school with a religious character, governors of previous VA schools will legally be able to appoint Christian teachers (see Section 60 of Schools Standards & Frameworks Act 1998 as amended by the Independent Schools (Employment of Teachers in Schools with a Religious Character) Regulations 2003).
4 / Will the Academy Trust always seek to appoint a Principal who is a committed Christian and is a member of a church which is a member of Churches Together in Britain and Ireland or the Evangelical Alliance?
The Academy Trust will need to ensure that NCSL guidance on ‘Achieving Excellence in the Leadership of Church Schools’ is followed whenever staff are appointed to the Senior Leadership Team.
B / CHRISTIAN DISTINCTIVENESS cont’d. / √ / ̶ / OUTCOMES / NEXT STEPS
5 / The Academy will continue to seek support from the Diocesan Board of Education in developing a strong Christian ethos within the life of the school community.
6 / How will the Academy ensure that it maintains and develops its religious character as a Church of England school?
This commitment will be made explicitly by the inclusion of an appropriate ethos statement in the Memorandum and Articles of Association for the Academy Company and in other relevant documents.
7 / In what ways will the new Academy work in support of educational excellence in other schools (not only the expected relationship with at least one other school) and without detriment to other local schools?
8 / The Academy will continue to be subject to inspection under SIAS arrangements every three years, as will be required by the Funding Agreement, and will fund in full each such inspection.
C / GOVERNANCE / √ / ̶ / OUTCOMES / NEXT STEPS
1 / The school’s Governing Body will obtain prior written approval to its proposed application to the Secretary of State from all those who appoint foundation governors.
The school governance model changes for Academies. Where a school converts to Academy status on its own – rather than as part of a group with other schools – it sets up a Trust Company, registered at Companies House, to run the Academy. Standard Memorandum and Articles of Association applicable to VA and VC schools are available on the DfE website. For VA schools, three members of the new Company are required to set it up. These should be representatives of current corporate bodies (eg the PCC of the school’s parish church, other foundations bodies who appoint governors and the DBE) or be corporate individuals such as the existing ex-officio incumbent. For VC schools, the ‘as is’ principle applies and the members of the Company should reflect those bodies who currently appoint members of the Governing Body, safeguarding the Christian character of the school.
2 / The Governing Body will obtain the prior agreement of the Chichester DBE over membership of the Academy Trust Company and the appointment of governors (who become, in effect, the directors of the company) as set out in its proposed Memorandum and Articles of Association.
The DBE has taken steps to set up ‘Umbrella Trust’ arrangements which will help to determine the DBE’s corporate representation on each individual Academy Trust. Membership of the Academy Trust should reflect the category of school (VA majority Model 1 or VC/Foundation minority Model 2) and the existing constitution of the school.
Only members of the new Academy Trust can appoint governors (company directors). They may nominate themselves. Foundation members of the Academy Trust therefore must appoint the foundation governors. They may agree to accept nominations from relevant non-member bodies, such as the local PCC if it is not a member.
C / GOVERNANCE cont’d. / √ / ̶ / OUTCOMES / NEXT STEPS
3 / Will other members of the Academy Trust be sought from corporate bodies of the Church of England e.g. local incumbent, rural dean orthe PCC of an associated parish?
4 / Has the Governing Body considered carefully the implications for the procurement of the full range of services which will not longer be provided by the Local Authority?
Governors will need to agree a clearly defined, costed and realistic business plan for the provision of these services in order to ensure that all pupils, staff and governors continue to be well supported.
5 / Will the Academy continue to purchase services made available by the diocese especially in relation to the development of its Christian distinctiveness?
6 / To what extent will the Academy continue to give advisory rights to the DBE on the appointment of the Principal and all other staffing matters of substance (e.g. Senior Leadership Team and Head of RE appointments)?
7 / How will the Academy ensure that the prior consent of current Trustees is sought for future capital works and for any disposal of assets and will also seek consent from the DBE?
The Academy will need to make full use of DBE guidance for capital works in the interests of value for money and of effective project management. Governors are reminded that the Academy will be dependent directly upon the DfE for all future capital allocations. It will no longer have access to LCVAP for buildings maintenance and development grants.
D / FINANCIAL/LEGAL / √ / ̶ / OUTCOMES / NEXT STEPS
1 / Has the Governing Body included in its business plan arrangements for securing the procurement of the full range of services which will no longer automatically be provided by the Local Authority so as to ensure that all pupils, staff and governors are well supported?
The GoverningBbody has scrutinised these costs as part of its due diligence in preparing for Academy conversion, having sought and received full financial information from the Local Authority relating to its current and future financial position.
2 / Has the Governing Body obtained from the Local Authority full details of costs for any additional pensions contributions, staff continuity of service etc., for which it may be liable as an Academy employer, and has itincludedsuch costs in its business plan?
3 / How will all outstanding loans be repaid to the DBE/DBF before the Funding Agreement is signed.
4 / Will the Governing Body ensure that all outstanding contractual matters both for staff and external services are resolved prior to the signing of the Funding Agreement and that all associated costs are met?
5 / All matters relating to the useof any Trustee/Diocesan assets by the new Academy Trust will be completed before the Funding Agreement is signed. This includes land, buildings or any other capital assets resting with the present school Trustees.
6 / All costs (including those of the DBE/DBF) relating to the leases, transfer/assignment of any extant leases/licences/transfer of control agreements/hiring agreements or tenancies at will, must be met in full by the school direct.
D / FINANCIAL/LEGAL cont’d. / √ / ̶ / OUTCOMES / NEXT STEPS
7 / The legal mechanisms for establishing the Academy will be agreed by the DBE and all costs over and abovethe DfE grant will be met by the Governing Body.
The Governing Body will be required to pay £3000 plus VAT to the DBE as a contribution to the overall costs incurred by the Diocese (these will usually be far in excess of this figure when measured against the Board’s standard consultancy costs of £600 per day for SLA subscribing schools).
8 / How will the school acquire specialist legal advice for the following tasks:
- Consents
- Academy Trust set up
- Funding Agreement and annexures
- Land transfer arrangements
- Supplemental Agreement
- General advice, co-ordination and ongoing support.
9
D / Has the Governing Body considered and taken a view on the project management options set out below?These include indicative costs based upon experience in other dioceses of a typical single model conversion of a Church of England School with no complex issues relating to land or trusts:
i)Option 1
Appoint Diocesan Solicitors and a project manager to administer and manage the conversion.
NB
These costs in addition to the DBE’s £3,000 fee (plus VAT) are likely to be in the region of £15,000 (plus VAT).
FINANCIAL/LEGAL cont’d. / √ / ̶ / OUTCOMES / NEXT STEPS
ii)Option 2
Appoint Diocesan Solicitors and the Governing Body takes responsibility for the project management of the conversion process. The costs in addition to the DBE’s £3,000 (plus VAT) are likely to be in the region of £12,000 (plus VAT).
There would be a cost saving to be achieved in dispensing with project management support services. In practice, however, given the work involved in a school trying to do this itself, the extra support needed as a result from its solicitors could make this a false economy.
iii)Option 3
The Governing Body appoints its own solicitors and negotiates the costs for legal services for Academy conversion. Governors should note that additional costs will be incurred as the services of the Diocesan solicitors will be required anyway to act on behalf of the DBE as the Religious Authority. These costs would be charged to the school in addition to the £3,000 (plus VAT) charged by the DBE for our officers’ time in supporting the school from consultation to consent to conversion.
E / PUPIL ADMISSIONS / √ / ̶ / OUTCOMES / NEXT STEPS
1 / Religious criteria can still be used for admissions if they have been in the past. The Academy’s admissions policy must be in line with the national Admissions Code and in accordance with Diocesan and National Society guidance.
Becoming an Academy should not have any immediate effect upon the school’s admissions arrangements.
2 / All admission arrangements will be incorporated into the Funding Agreement which cannot be changed without the agreement of the Secretary of State.
3 / How will the Academy Trust monitor and review the admission arrangements to ensure that it, the DfE, the DBE and any other trustees or religious authority are all clear and content with the detail and operation of the admissions policy after conversion?
4 / The school will consult with the Diocese in relation to admission arrangements before the Funding Agreement is signed and at any future juncture when a change is proposed.
Academies are subject to the national Admissions and Appeals Codes and the SEN Code of Practice and must comply with them at all times.
F / SCHOOL STAFF / √ / ̶ / OUTCOMES / NEXT STEPS
1 / Has full consultation been carried out with school staff regarding their prospective change of employer and conditions of service matters, and with any recognised trades unions?
2 / Has HR and legal advice been sought and received from the Local Authority about the appropriate way to conduct the TUPE processes and to protect the rights and interests of school staff?
TUPE applies and the TUPE consultation procedures required under national Regulations must be followed.
3 / Has careful consideration has been given by the Governing Body to the impact of the proposed change to Academy status upon pension and continuity of service arrangements for school staff?
The Academy Company will become the employer of all staff who transfer to it from the employment of the Local Authority or from the Governing Body in the case of a voluntary aided school.
4 / Will the Academy comply with national pay and conditions agreements for all staff groups?
Only in exceptional circumstances would any deviationfrom national agreements be considered by the DBE to be appropriate.The power to use religious criteria in the employment of some staff is one of the major consequences of designation as an independent school. The terms and conditions of existing school staff will be protected fully under TUPE and the effect of this should be carefully monitored.
G / LAND AND PROPERTY / √ / ̶ / OUTCOMES / NEXT STEPS
1. / Will the Governing Body seek to agree all matters relating to the future use of any Trustee/Diocesan assets by the new Academy Trust at the earliest possible stage in the conversion process?
In order to facilitate this, the school mustliaise with the Diocese if it wishes to prevent undue delays to conversion. Discussions should include land, buildings or any other capital assets owned by the Diocesan Board of Finance (DBF) or other church trustees. The presumption is that the Academy Trust will occupy DBF and other church assets under a Supplemental Agreement, rather than through a lease. This replicates the present arrangement for VA and VC/Foundation schools.
2 / Have appropriate initial discussions been held with Sally Collins, DiocesanSchools Buildings Officer?
Land and property issues can be complex and take a good deal of time to resolve. Schools are advised to allow at least four months to resolve property issues prior to Funding Agreement being achieved.
3 / How will the Academy Trust ensure,prior to opening,that appropriate legal documentation is in place for the use of the land and buildings as an Academy?
As the original Church Trust legally remains in place, there will be a requirement that extensions and/or alterations to the buildings do not go ahead without the prior written consent of the religious foundation trustees including the DBE.If the Academy Company and governing body were to be in breach of the terms of legal requirements, the agreement would be forfeited and the Academy might have to vacate the Trustees’ site.
G / LAND AND PROPERTY cont’d. / √ / ̶ / OUTCOMES / NEXT STEPS
4 / Will school/caretakers’ houses be occupied under the terms of the Supplemental Agreement?
If a lease is required, the legislation relating to residential leases applies. This means that such buildings require a separate lease from the Trustees to the Academy Trust. This lease cannot exceed 20 years without triggering ‘enfranchisement’ and so must be renegotiated at that point. If the school has such properties, it should contact Sally Collins at an early opportunity.
5. / Will the Trustees be sent annual evidence of an appropriate level of insurance (most notably third party insurance)?
The Academy Trust will be required to meet any costs arising from this review, including any professional valuation that is needed. This requirement is built into the model documentation.
6 / Will the Trustees, as ‘landlords’, be sent a brief annual report to confirm that all buildings are being properly maintained taking into account the funding available to the Academy Trustees?
Regular surveys will be requiredof the condition of the buildings by a suitably qualified and approved surveyor at intervals agreed by the DBE.
Academy Conversion Guidance March 2012Page 1