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).


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