It is common for schools to enter into a range of contractual arrangements with local authorities or private companies. Whether they are formal written contracts or verbal agreements, they’ll be worth considerable sums of money. Consequently, schools risk exposure to potential litigation through the courts, particularly where they wish to terminate contracts or seek to re-negotiate terms with providers of services. A key consideration for any school, therefore, lies in its governance. It encompasses their moral responsibility to promote and advance the educational prowess alongside significant legal responsibility.
A broad range of schools, including mainstream, voluntary aided and/or controlled and academies are state funded. This means that their school governors are automatically responsible for management and administrative processes.
The duty of a school governor falls into 6 areas:
Act Within The Law and Within The School’s Powers
Every school must act within the strict terms of common and statutory law. They must also not exceed the terms set out in the formal governing document, otherwise referred to as a trustee deed or articles of association. This outlines the purpose and the powers assigned to the school. If in any doubt about the content and meaning of this document you should seek legal advice from one of our education solicitors.
Duty of Prudence
A governor must ensure that the funds and resources used to further the charitable aims and objectives of the school are employed with reasonable restraint. This means that speculative and/or high-risk arrangements that could result in a loss of assets or reputation are avoided.
Exercise of Reasonable Care and Skill
School governors are encouraged to apply their own specialist knowledge and expertise but they should also seek professional advice whenever necessary. If, for example, there is a lack of understanding about property law then they should seek independent advice.
Managing Conflicts of Interest
School governors can be drawn from a variety of backgrounds and, as such, can represent a broad spectrum of values and objectives. However, a school must ensure that no conflict arises from any inherent differences between your interests, or of those who might have some moral or practical sway over a decision. The school itself should always remain at the epicentre of their job.
Keep Up To Date With Annual Returns and Accounts
The Charity Commission will require full transparency with regards to the running of the school. They will want to ascertain that it is financially solvent. We would also recommend that every school governor obtains a copy of the latest financial accounts, the school’s business plan and is acquainted with the school’s financial controls to reduce the risk of theft or fraud.
Every governor has a responsibility to remain loyal and trustworthy during their post. They must not make a profit from their position. If any financial opportunities arise then a formal disclose must be made to the governing body and they must give their permission before any leads are explored.
The School Governance regulations (constitution) which were devised in 2012 also play a central role for they provide the legal framework. The Governance Handbook an excellent point of reference.
Aside from all of this you may be experiencing a lack of legal support from your local authority. This will inevitably be leaving your school and your governors vulnerable to legal challenges.
It is also important for Governing Bodies of 'maintained' schools to note that when spending their delegated budgets, the school will be deemed to be acting as an 'agent' of the local authority. Therefore, poor advice around a contract could result in claims being made both against the school and/or the local authority, with financial implications for both.
We have experience advising schools on the following matters:
- Procurement of services
- Drafting contractual documents
- Termination of contracts
- Recovering unpaid fees from parents or suppliers (i.e. costs of after-school clubs and/or school meals)
- Defending or pursuing breach of contract claims in the County Court
We are here to provide support and confidential advice on a range of areas.
Governance Support for Schools
We aid in the operation of a school by:
- Advising on the instrument of governance
- Advising on the roles and responsibilities of governors
- Providing legal advice to governors on a range of issues arising in the management and running of the school
- Interventions by the local authority
We also have experience in advising Governors on a range of school organisation issues including:
- The establishment of a trust
- Change of status from community to foundation
- School expansion
- Developing specialist SEN provision
- Federations and amalgamation
- Disputes with the School's Adjudicator