August Snippet: Free Schools Latest

August 20th, 2012 by Tim Kerr QC

With the coalition party leaders away on holiday leaving William Hague in charge at home, a House of Commons Library Note (SN/SP/6058) entitled Free Schools was released on 14 August, bringing the statistics on free schools (which in law are newly created academies) up to date.  The Note reminds us that the first 24 free schools opened in September 2011 and informs that 65 more have been approved of which “about 50” are due to open in September 2012.  A further 102 applications have been approved; most of these are expected to open their classrooms from September 2013.  As is now well known, the concept of a “free school” is, essentially, that anyone can set up a state funded non-fee paying school if they can persuade the Secretary of State to fund it.

At an 11 KBW seminar in June 2012, I suggested that a local authority could itself become involved in setting up an academy, by becoming a founder member of the company established to run the academy.  It is a nice irony that the Localism Act 2011 enfranchises authorities to the point of allowing them to tread the very ground (the running of schools) from which it has been the policy of successive governments to remove them.  Whether the Secretary of State would be persuaded to enter into “Academy arrangements” or an “Academy agreement” under the Academies Act 2010 with a local authority is, of course, another matter.

The authority itself could be the “any person” (AA 2010 section 1(1)) with whom the Secretary enters into academy arrangements.  Since an individual may enter into such arrangements, a local authority may do so: Localism Act 2011 section 1(1).  At least one authority has since expressed interest, but it is not known whether the next wave of free schools will include any with local authority participation.  Must the authority hold an open competition (under section 7(2)(b) of the Education and Inspections Act 2006, as amended by the Education Act 2011) before deciding whether to do so?  Though opponents of academies might beg to differ, Forbes J’s decision in Chandler suggests not (see R (Chandler) v Secretary of State for Children, Schools and Families [2009] EWHC 219 (Admin); [2009] BLGR 417 (appealed on other grounds: [2009] EWCA Civ 1011; [2010] BLGR 1).


High Court allows Downhills Primary School to be converted into an Academy

August 15th, 2012 by Joanne Clement

Mr Justice Kenneth Parker has this morning refused permission to apply for judicial review in R (Moyse) v Secretary of State for Education. The claimant, a parent, challenged the Secretary of State’s decision to convert Downhills Primary School into an Academy from this September.

The background to the claim is that Mr Gove made an Academy order in March and identified his preferred sponsor (the Harris Federation). The Governing Body (an interim executive board) then carried out a consultation exercise on whether or not the school should convert to academy status from 1 September 2012. Mr Gove decided on 20 June  to convert the school using his powers of intervention, which arise where a school has been assessed by Ofsted as requiring “significant improvement” or (as in this case, following an Ofsted report in early 2012) “special measures”. He entered into a funding agreement with the Harris Federation. The claimant issued a claim on 19 July, asking the Court to grant permission to apply for judicial review and, further, to stay the conversion of the school (which would otherwise go ahead on 1 September) pending the outcome of the proceedings.

The claimant raised four grounds of challenge, alleging that:

–          the requirement that, prior to conversion, there is a consultation under section 5 of the Academies Act 2010 had not been fulfilled, since the governing body which conducted the consultation had not reached its own decision on whether conversion should take place;

–          the consultation process had been unfair because parents had not been given an opportunity to formulate an alternative proposal;

–          the Secretary of State had, in reaching his decision, not complied with section 9 of the Education Act 1996, which requires regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and the avoidance of unreasonable public expenditure; and

–          the Secretary of State had asked himself the wrong question, by focusing on the school’s historic performance instead of its likely performance in the future should it continue to be maintained by the local authority.

Mr Justice Kenneth Parker refused permission to apply for judicial review, deciding that the claimant’s grounds were unarguable.

The Secretary of State was represented by Clive Sheldon QC and Patrick Halliday of 11KBW.  Rachel Kamm, also of 11KBW, represented the governing body (an interim executive board) which was an interested party.


School premises

August 2nd, 2012 by Rachel Kamm

New regulations have been laid before Parliament to set standards for the premises of maintained schools in England (but not Wales). The School Premises (England) Regulations 2012/1943 are due to come into force on 31 October 2012. There will be parallel amendments to the Education (Independent School Standards) (England) Regulations 2010. The Education (School Premises) Regulations 1999 will continue to apply to maintained schools in Wales.

The  new regulations are significantly shorter than the previous version and are intended to reduce bureaucracy. The general approach is to require a feature of premises (e.g. medical accommodation, acoustics or lighting) to be suitable. This is defined to mean that it is suitable for the pupils in respect of whom it is provided, having regard to their ages, numbers and sex and any special requirements they may have. The Government also intends to publish supplementary guidance.

Rachel Kamm, 11KBW