Setting up an Academy - Legal Services for Schools Seeking Conversion
The Academies Act came into force in 2010. This allows government maintained primary and secondary schools across England, Wales and Northern Ireland to apply for Academy status from the Department for Education (DfE).
By introducing a streamlined process through primary legislation it is intended that the conversion process is straightforward and can be accomplished within a single school term (approximately 3 months).
Governing Body Resolution
The Governing Body will need to pass a resolution approving the application to seek Academy status. This must be undertaken before a school can commence down the Academy conversion process.
The Role of the Academy Trust
The body responsible for the operation of the Academy will be the Academy Trust. This body will need to be registered with Companies House and the Governors will need to ensure that a Memorandum and Articles of Association which govern its operation are prepared.
The Process of Academy Conversion
Via the Department for Education website, school governing bodies and headteachers can access a wealth of information and guidance on academisation. However, they should not overlook the need to seek independent legal advice at critical stages of the conversion process.
What Legal Issues Might You Encounter?
Conversion to Academy status brings with it a number of benefits. The process has certainly been made easier in recent years and it does not necessarily require “lawyers” to get involved. However, there are a number of legal issues which will need to be dealt with before, during and after the conversion process. A Governing Body may not have had to deal with them when their appointed school was under the umbrella of its Local Authority but it’s advisable that they seek independent legal advice on a number of areas. These include:
- Consultation and communication with key stakeholders
- Employment / HR
- Funding Agreements
We can now start to look into each of these areas in more detail.
Communication and Consultation
Although the Government is not requiring schools to undertake formal consultation with stakeholders in respect of the conversion to Academy status, as a matter of public law, it is important to ensure that those affected by the change are properly informed. This includes employees and parents. Inadequate or lack of proper consultation may result in a legal challenge by way of judicial review. Therefore, advice and assistance may be required with regard to managing the consultation process.
Academies are independent schools and thus operate in a different way to state maintained schools. Whilst the Government is likely to require Academies to meet the same type of obligations as maintained schools in respect of admissions, special needs and exclusions, all of the Academy policies and procedures in each of these areas may need to be reviewed and amended to reflect the different legal obligations which will apply.
Employment / HR
Where the Local Authority is the employer of staff, advice will need to be provided to deal with the transfer of staff to the new Academy, where the employer will be the Academy Trust. Its Members and Directors will need to be advised of their new duties and Governors will have to observe “TUPE” requirements. These protect staff terms and conditions on the transfer and also requires staff to be consulted about the transfer in advance. Governors may also need to seek indemnities in the transfer agreement from the Local Authority in respect of existing employment disputes so that the Academy is not at risk of being financially liable for claims made against the former employer.
To find out more about how we can help with employment law, please click here.
The conversion process will generate a transfer of land and/or assets to the Academy which will need to be agreed and resolved with the Local Authority and/or landowner before the conversion is completed. The property side of the conversion process may include any of the following:
- Advising, negotiating and preparing the transfer of land (freehold/leasehold) to the Academy Trust from the Local Authority
- Undertaking searches against the land
- Preparing the report on title
- Advice on the creation of joint-use agreements where rights to access land may be shared
- Dealing with any registration requirements with the Land Registry Office
The funding agreement that will be entered into between the Department for Education and the Academy Trust is typically a standard contractual document which sets out how the Academy will operate. However, legal advice may need to be sought on its terms and conditions so that the Academy trustees are fully aware and briefed of their duties and potential liabilities under the Agreement. Governors also need to be mindful of the fact that Academies do not have the same level of protection as a maintained school. For example, Academies will be fully accountable for personnel disputes and challenges against its decision-making and will not be able to seek financial support from the Local Authority to defend such claims or challenges.
The school may have a number of existing contracts and resources (e.g. catering, IT, cleaning and SEN provisions) and may need advice on how to transfer these to the new Academy
How Can We Assist?
The Government intends to provide Governing Bodies with a financial contribution to meet the costs of converting to an Academy. Whilst this is not intended to be used solely for seeking legal advice, it is important that Governors obtain value for money and are not using this resource solely on “lawyer’s fees” which are unnecessary for the majority of the conversion process. At Legal4schools, we can advise you on the areas where you may need legal support. For an Academy Conversion you can instruct us in a number of different ways depending on your own individual requirements:
- Cost effective when compared to the costs charged by a private practice or in-house legal team
- Timely advice provided when you need it
- Personal service; we tailor the services we provide to your own individual requirements
- We offer specialist education advice and support post conversion, thereby offering you a consistent package of legal support
We have advised an extensive range of schools who have embarked on becoming state academies. This has included:
• Community schools
• Special Needs schools
• Foundation schools
• Trust schools
• Voluntary aided schools
• Schools converting as part of a hard federation or partnership
Free Initial Consultation
If you would like to discuss your conversion to Academy status or you would like some general advice on whether this is the right step for the school to take, we can provide you with a free initial consultation. It typically lasts for an hour and it can be used to identify the legal issues that are likely to arise with the conversion.
Following on from this we will send you a written summary. If, at this point, you would like to instruct us to support you with your conversion then there are two options to consider. We can either provide advice you through our Academy Conversion Package or by dealing with matters on an hourly rate.
Academy Conversion Package
For a fixed fee of £3,500 + VAT we will provide you with 50 hours of legal support to be provided by a solicitor to assist you through the conversion process
This support can be used flexibly in the form of written advice, attending meetings, drafting documents, delivering presentations and providing telephone advice.
If all of the support hours are used then further advice and assistance is charged on a discounted hourly rate. If you do not use up all of the support hours, you can convert them to one of our School Subscription Packages so that you can access ongoing specialist education legal advice and support.
The advantage of the package is that it allows the school to budget for legal support at the commencement of the conversion process, thus you are not going to be hit with an unexpected bill at the end of the process.
Advice and Assistance Charged via an Hourly Rate
If you are not sure how much legal support you will require through the conversion process we can work with you on a needs basis and will charge you by way of an hourly rate.
We charge £75.00 per hour, which is discounted by 5%, where the school is an existing subscriber to one of our School Subscription Packages.
There may be some disbursements that will need to be incurred. These may include:
- Search fees
- Company incorporation fees
- Land Registry fees
All disbursements are charged separately and are agreed with the Governing Body in advance.