Academies and charities regulation

January 6th, 2011 by Peter Oldham QC

S 12(4) of the Academies Act 2010 amends the Charities Act 1993 by adding qualifying academy proprietors to the list of exempt charities in Schedule 2 to the 1993 Act.  S 12(4) was due to come into effect on 1st January 2011 – see art 4 of the Academies Act 2010 (Commencement and Transitional Provisions) Order 2010. However, this provision of the 2010 Order was revoked by the Academies Act 2010 (Commencement and Transitional Provisions) (Amendment) Order 2010 on 22nd December 2010.  The explanatory note to the Amendment Order says:-

“This Order amends Schedule 3 to the Academies Act 2010 (Commencement and Transitional Provisions) Order 2010 by revoking the commencement of section 12(4), due to come into force on 1st January 2011.

Section 12(4) amends Schedule 2 to the Charities Act 1993 (exempt charities) to add a qualifying Academy proprietor to the list of exempt charities. An exempt charity does not need to register with the Charity Commission and is regulated, in the first instance, by its principal regulator (appointed by regulations made under section 13(4) Charities Act 2006). The Order has the effect of preserving the Charity Commission’s power to act for the protection of academy proprietors as charities under section 18 of the Charities Act 1993. At the point at which a principal regulator is appointed for Academy proprietors, section 12(4) will be brought into force.”

Peter Oldham QC



Ofsted Annual Report

November 25th, 2010 by Edward Capewell

On 23rd November 2010 the Annual Report of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills, better known as the Ofsted Annual Report was published. The report is of course made pursuant to section 121 of the Education and Inspections Act 2006. It can be read here and there is a rather more easily digestible (though quite brief) summary here. The report of course covers the full range of Ofsted’s responsibility – so includes children’s social care and local authority children’s services – but the lion’s share deals with schools (see paragraph 51ff). I set out in this post some of the more interesting features of the report (with apologies for the torrent of statistics):

–          There were nearly 32,000 inspections and regulatory visits made between September 2009 and August 2010. That included inspections of over 6,000 maintained schools      (including academies) and 300 independent schools.

–          Of those schools inspected in 2009-2010, 13% were ‘outstanding’, 43% were ‘good’ 37% were ‘satisfactory’ and 8% were ‘inadequate’ (figures are rounded).

–          The number of outstanding schools was down from 19% the previous year and the number of inadequate schools was up 4% (from 4%). Ofsted is at pains to emphasise however that those figures are largely attributable to the new, more rigorous, section 5 Education Act 2005 framework for inspections which was published on 6th August 2010 (but applies to inspections carried out from September 2009) (fig 16).

–          55% of schools which were outstanding when last inspected were no longer outstanding when inspected in 2009-2010.

–          Nursery schools had the highest proportion of outstanding inspections (59%) with primary schools having the lowest (9%) (fig 13).

–          Nursery schools also had the lowest proportion of inadequate schools (3%) with secondary schools having the highest (13%).

–          Special schools generally performed better than ordinary maintained schools with 35% rated outstanding and 43% good (paragraph 58). However those figures hide considerable discrepancies between types of special school: those catering for children with behavioural, social and emotional difficulties were less than half as likely to be outstanding and more than twice as likely to be inadequate as other special schools. These issues are dealt with in more detail in Ofsted’s recent report on SEN (September 2010).

–          The figures for quality of teaching in different types of school are striking. The teaching in 57% of nursery schools was rated outstanding – the figure for primary schools a mere 5% and for secondary schools only 4%. 52% of primary schools and 47% of secondary schools provided good teaching however (fig 22).

–          Of 43 academies inspected, 11 were outstanding, 9 were good, 20 were satisfactory, and three were inadequate. Most of the academies inspected however were section 482 academies (typically converted from ‘failing schools’) rather than what the report describes as ‘fast track’ Academy Act 2010 academies (converted from outstanding schools) (paragraph 127).

–          The best academies, the report states, have “inspirational leadership”, ”a distinctive and flexible curriculum including a wide range of academic and vocational choices”, “highly committed and effective governance”, “very high and shared expectations across all classrooms” and “stimulating and interesting lessons” (paragraphs 130-132).

–          As at 31st August 2010, there are 300 schools (1.3% of the total) in special measures and 276 (1.2%) which have been given a notice to improve. (For more detail on the destinations of schools placed in special measures or given a notice to improve last year see paragraphs 440-514).

The Prime Minister’s foreword to the White Paper published yesterday promises to “re-focus Ofsted inspections on their original purpose – teaching and learning…” which appears to suggest that there will be another new framework for inspections soon. That no doubt means we can look forward to next year’s statistics not being directly comparable to this year’s, in the same way that this year’s are not directly comparable to last year’s. Not, perhaps, exactly a recipe for achieving what the White Paper calls “a streamlined and effective accountability system”.


The Freedom of Information (Time for Compliance with Request) Regulations 2010

November 24th, 2010 by Rachel Kamm

These Regulations are made under the Freedom Of Information Act 2000 and extend the time limit for Academies to respond to requests for information. The normal time limit for responding is twenty working days of date of receipt of the request. However, where the information is requested from an Academy, then any working day which is not a school day for that Academy is disregarded (subject to a long stop of sixty working days). These are the same timeframes as apply to schools covered by The Freedom of Information (Time for Compliance with Request) Regulations 2004 (S.I. 2004/3364) and The Freedom of Information (Time for Compliance with Request) Regulations 2009 (S.I. 2009/1369).

This post is also on 11KBW’s information law blog:


Confirmation of opening up of academy applications

November 19th, 2010 by Rachel Kamm

Further to Peter’s post on Wednesday, the DfE website now confirms that a wider range of schools will be able to apply to become academies. Michael Gove has announced that “Alongside outstanding schools, all schools that are ranked good with outstanding features by Ofsted will automatically be eligible for academy status. All other schools – primary or secondary – that wish to enjoy academy freedoms will also be eligible, providing they work in partnership with a high-performing school that will help drive improvement. In addition, for the first time, special schools will also have the opportunity to become academies, providing them the opportunity to operate with greater freedom and autonomy in order to better respond to the needs of children with special educational needs or disabilities. Special schools will be able to apply to convert in January.” ( More than 220 schools have applied and 80 academies have opened since July 2010.


Opening up academy applications

November 17th, 2010 by Peter Oldham QC

Peter Oldham QC

Section 3(1) of the Academies Act 2010 does not limit the type of maintained school that may apply to become an academy to those which have an outstanding OFSTED report.  Any English maintained school may apply.  However, at least until now, it has been the DfE’s policy to approve applications only from schools with an oustanding OFSTED.  There are media reports that the DfE is to open up the opportunity for successful applicants for academy conversion to be drawn from a wider group, to include schools with an OFSTED rating of good, with some outstanding features, and to schools which enter into some form of partnership arrangement with an outstanding school.  This, however, is not reflected by the current DfE website, so we await further details.

Peter Oldham QC


Admissions and social mobility

September 14th, 2010 by Peter Oldham QC

There are currently news reports that the DfE is thinking about allowing some school to give admission priority  to poorer children.  If this is particularly aimed at academies, whether converters or free schools, then, given that the model funding agreement effectively requires them to abide by the School Admissions Code, are we going to see changes in the Code?

Peter Oldham QC


The Academies Programme

September 13th, 2010 by Edward Capewell

On 10th September 2010 the National Audit Office published a report entitled ‘The Academies Programme’. The report contains a wealth of interesting information and statistics on academies and can be read here.

Although the report’s primary purpose is to evaluate “the performance of existing academies in meeting the original Programme objectives”, Part 3, which assesses the management and governance of academies, also considers the challenges for the future expansion of the academies programme under the Academies Act 2010. The following statistics are also recorded:

  • As at 31st August 2010 there were 203 open academies.
  • 181 schools had formally applied to be an academy under the 2010 Act by 1st September 2010.
  • Of those, 142 are due to open as academies during 2010-2011, with 32 opening in September 2010.
  • In addition, 74 ‘old’ academies (those created from under-performing schools, see our blog post here) are to be established, with 64 of those opening in September 2010.

Overall, the report is positive about the educational achievements of academies so far. ‘Most’, it records, are achieving increases in academic attainment for their pupils compared with their predecessor schools, although a ‘small number’ have made ‘little progress’. Academies are ‘generally’ becoming more popular, although there has been an overall reduction in the proportion of pupils from disadvantaged backgrounds. The report attributes that to the ‘lower proportions of such pupils in more recently opened academies’. Perhaps surprisingly, it is also recorded that ‘on average, the gap in attainment between more disadvantaged pupils and others has grown wider in academies than in comparable maintained schools.’

It is with regard to management, governance and value for money that the report sounds a faint note of caution with regard to the expanding programme under the 2010 Act. Although acknowledging that data are at present limited, the report states: “The expansion of the Programme will increase the scale of risks to value for money, particularly around financial sustainability, governance and management capacity…[and] plans for faster expansion will increase the need for rigorous programme monitoring and a systematic framework to secure good practice and compliance by all academies.”

The report makes a number of recommendations. The first, interestingly, is a plea to the Department for Education to clarify what its policy position actually is:

“To support future evaluation of value for money across an increasingly diverse range of schools, the Department should state what the objectives of the Academy Programme now are, and how it will measure success against them.”


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