Maintained schools’ powers to form a company to enter into academy arrangements, and to co-operate with academies

August 18th, 2010 by Peter Oldham QC

While our attention, in respect of academies, is naturally focussed on the Academies Act 2010, some less well known provisions relating to academies in the Labour government’s Children, Schools and Families Act 2010 are worth remembering.  These have been put into effect, on 19th July 2010, by a commencement order made by the current government.  Section 5 provides:-

5  Power to form company to establish Academy, etc

(1)     The governing body of a maintained school in England may— 

(a)     form, or participate in forming, a company to enter into an agreement under section 482 of EA 1996 (agreement with Secretary of State to establish etc an Academy), and

(b)     do anything which appears to them to be necessary or expedient in connection with a proposal that an agreement under that section be entered into with a company formed (or proposed to be formed) by them under paragraph (a).

By section 15(5) of the Academies Act, the reference to section 482 of the Education Act 1996 in section 5(1)(a) of the Children, Schools and Families Act 2010 is to be read as referring to academy arrangements under the Academies Act.

Section 6 of the Children, Schools and Families Act 2010  adds to the powers of governing bodies of maintained schools under paragraph 3 of Schedule 1 to the Education Act 2002 by adding the following sub-paragraphs:-

(2A)     The governing body of a maintained school in England (other than the governing body of a maintained nursery school) may provide advice and assistance to the proprietor of an Academy.

(2B)     The governing body of a maintained school in England may be a member of the foundation of another maintained school in England.

In this sub-paragraph “foundation” has the meaning given by section 21(3) of the 1998 Act, except that it does not include a foundation established under that Act.

(It may be that governing bodies had these latter powers anyway under the general powers in paragraph 1 of Schedule 3.)

Peter Oldham QC


Academies – further paperwork update

August 16th, 2010 by Peter Oldham QC

At, the DfE  has published (13th August 2010) new versions of the Model Articles of Association for converting Academies and groups of schools, allowing them more freedom to decide how many staff governors should be on the governing body.

Peter Oldham QC


Academies – who can become one?

August 13th, 2010 by Edward Capewell

The ‘Frequently Asked Questions’ section of the DfE website on Academies ( gives the following answers under the heading ‘Requirements’:

  • “Which schools can apply to become academies?
    Only schools (primary, secondary and special schools) that have been rated outstanding overall in their most recent Ofsted inspection are eligible to convert to academies through this process. Register your interest on the online form.
  • We are not an outstanding school but want to become an academy – can we apply?
    Not yet. All schools will eventually be eligible to apply to be considered for academy status but the applications for all other schools will open at a later date in the year. There will be a further announcement on this process. However all schools are encouraged to register their interest in becoming an academy and we will ensure they are kept informed and provided with any help that is needed”

These ‘requirements’ are departmental policy only as they have no basis in the Academies Act 2010 itself. There is of course nothing to stop a non-outstanding school filling in the online form to register its interest (though it has to tick a box to state that it is not outstanding), and many have done so:

Under the previous government’s Academies programme, the requirements for becoming an Academy were rather different. The FAQs on the DCSF website are still available here: and they state:

  • What are the criteria for a school to become an Academy?
  • Some Academies are brand new schools in areas which need the extra school places. Most of them replace existing weak or underperforming schools. As a broad rule of thumb, the Government is prepared to consider any secondary school where in 2006 fewer than 30% of pupils gained five or more GCSEs at grades A* – C (including English and Maths) as a potential Academy project. In addition, local authorities should always consider an Academy as an option for dealing with a school in special measures, or subject to an improvement notice, whatever its results.
  • Sponsors may also enter an Academy proposal in any of the competitions now required under the Education and Inspections Act 2006 for most new and replacement schools, regardless of whether the normal standards criteria for an Academy apply. The competition decision maker must consider all proposals on their individual merits, having consulted the Department on whether it would be willing to enter into a funding agreement in the event of the Academy succeeding in the competition.

So the Coalition’s ‘new Academies’ are intended, for the time being at least, for outstanding schools to become even better, whereas the previous government’s Academies were intended to bring weak or underperforming schools up to scratch.

But what of those weak or underperforming schools which were in the process of becoming an Academy under section 482 Education Act 1996 when it was repealed by paragraph 4 of Schedule 2 to the Academies Act 2010 on 29th July this year? Some of them may have been planning to open as ‘old Academies’ at the beginning of the new school year in September. It appears from the transitional provisions in section 15 of the Academies Act 2010 that they will become ‘new Academies’ under the 2010 Act as well, whether or not they have yet entered into the funding agreement, and may, all things being equal, be allowed to open as such in September along with their outstanding colleagues.


Academies: paperwork update from DfE

August 6th, 2010 by Peter Oldham QC

From the DfE website – update on Academy formation documents which schools “are not expected to make changes to” and which they “should use”.

Any room, in any respect, for special cases? 

“Update 4 August 2010: During the passage of the Academies Act, ministers made commitments to incorporate particular provisions within the funding agreement and Articles of Association and these have now been incorporated. They are: a requirement for at least two parent governors on the academy’s governing body a requirement to promote community cohesion a requirement to have a designated teacher with responsibility for looked-after children a power for the Secretary of State to direct an academy to comply with any obligations contained within Annex C to the funding agreement, which covers SEN. The revised funding agreement and Articles of Association are available to download from the supporting documents page, along with several other updated supporting documents. Converting schools are not expected to make changes to the model Memorandum, Articles of Association and funding agreement. A number of technical amendments are also being made to the following annexes of the funding agreement, Annex B (Admissions) and Annex C (SEN). Grammar schools should note that an additional annex to the funding agreement covering grammar school ballot provisions is being developed. The final version, which schools should use, will be loaded on the supporting documents page as soon as possible.”

Peter Oldham QC


Transfer of School Surpluses to Academies

August 5th, 2010 by Holly Stout

The Academy Conversions (Transfer of School Surpluses) Regulations 2010 were laid before Parliament on 4 August and come into force on 1 September.  They set out the timetable within which a local authority must determine for the purposes of s 7 of the Act whether a school that is converting to academy status has a surplus, and the amount of that surplus.  Local authorities have 3 months from the ‘conversion date’ in which to do this. Schools have 1 month in which to appeal any determination to the Secretary of State.  The Secretary of State must determine any appeal within 3 months.  The authority must pay the surplus over to the school within one month of receiving confirmation from the school that it accepts the determination, or within one month of the expiry of the time limit for an appeal, or within one month of the Secretary of State’s determination, whichever is the earlier.

Holly Stout


Admissions and policing the honesty of applications

August 3rd, 2010 by Peter Oldham QC

The Admissions Code deals with applications for admission where the applicant has not told the truth. It is one of the very few situations in which a place may, in certain circumstances, be withdrawn.

Our sister 11KBW blog on information law,, has an entry for 2nd August written by our colleague Robin Hopkins, dealing with the decision of the Investigatory Powers Tribunal that Poole DC had misued surveillance powers under the Regulation of Investigatory Powers Act 2000 when it sought to police admission applications.

As Robin reports, the Council  suspected that an applicant may have lied about living in the catchment area of a sought-after primary school in Dorset. For about 3 weeks, therefore,  it covertly monitored the family.

The IPT found that:

(1) investigating a potentially fraudulent school application was not a proper purpose in the sense required by RIPA;
(2) the Council’s actions were in any event disproportionate, in that they were not necessary to achieve that aim; and
(3) the Council’s actions had breached the family’s rights under Article 8 of the ECHR.

Peter Oldham QC


Academies Act 2010 – commencement order

August 3rd, 2010 by Peter Oldham QC

The Academies Act 2010 (Commencement and Transitional Provisions) Order 2010 was made on 28th July 2010, bringing in provisions of the Act on 29/7/2010, 1/9/2010 and 1/1/2011.

Peter Oldham QC