Academies: Overcoming the Hurdles

The academies programme continues to gather steam, with the 200th academy opening in September 2009 and more planned to open this year. With this in mind, Graham Burns considers some of the key features of the programme.

Academies are all ability independent state schools. They differ from other state schools as they are not maintained by the local authority, but have their running and funding costs met by central government. Academies also differ from other state schools in that they have an appointed sponsor, or more often a lead sponsor and co-sponsors, who contribute to the vision and ethos of the academy.

Although academies are termed independent, the local authority will have an involvement in the academy set up, and collaboration with the academy in the longer term is encouraged.

The Academy Trust

The management and set up of the academy is the responsibility of the academy trust. Most day-to-day decisions regarding the academy are made collectively through a board of directors which is typically referred to as the governing body. To enable the sponsor’s vision and ethos to be met, the lead sponsor is usually able to appoint the majority of governors to the governing body. The local authority will have some influence on the governing body as it will usually have at least one seat.

The academy trust will hold the academy’s assets and receive its funding from the Department for Children, Schools and Families. The terms of the funding will be set out in the academy’s funding agreement which will be signed by the academy trust and the DCSF. The funding agreement is based on a model form document produced by the DCSF.

The academy trust is constituted as a company limited by guarantee with charitable status – meaning that it will be subject to both company and charity law. The academy trust’s memorandum and articles of association will set out the governance principles of the academy and are also based on model form memorandum and articles produced by the DCSF.

Working with Academy Sponsors

There is no one type of academy sponsor, with sponsors ranging from high performing schools (state or private) to universities, philanthropists, businesses, the voluntary sector and faith communities. Although academies are independent from the local authority, local authorities do still have an involvement and will want to ensure a good working relationship with the sponsor or sponsors. Whilst a local authority will not act as a lead sponsor of an academy, they increasingly act as co-sponsors. As a co-sponsor the local authority can contribute to the academy’s vision and ethos. The authority will also have the option of taking up an extra seat on the academy’s governing body.

In February, the DCSF launched a new accreditation process for sponsor selection. Under these new proposals, there will be two categories of accreditation, Accredited School Providers (ASPs) and Accredited Schools Groups (ASGs). ASPs will be educational institutions, or other organisations applying with an educational institution, that wish to run one or two academies. All lead sponsors of academies will be required to seek and obtain accreditation as an ASP before they can be selected for a project. The ASG accreditation will be for those providers who wish to run three or more schools. It is hoped that the reforms will make sponsor selection a more transparent process, although whether this will be seen as enough to satisfy academy critics remains to be seen.

Academy Building Works

The opening of a new academy will usually be by taking over the existing premises of a school which the academy replaces. However, the opening of the academy is likely to improve the quality of the learning environment. The improvement works may be refurbishment, alterations, or new build and can often be a combination of all these elements.

One common approach is for the academy to open initially in the existing buildings of a predecessor school and then to relocate into new buildings, on the same site, once construction works are complete. The existing buildings are then demolished and become part of the playing fields and external areas of the new school complex. This allows the academy to operate as a school while the new premises are constructed, but in practice may involve the academy occupying temporary buildings.

The delivery of academy building works is the responsibility of individual local authorities accountable to Partnerships for Schools (PfS). Any building works will be procured either through the PfS National Framework, or through a local authority’s Local Education Partnership which will have been set up as part of the authority’s Building Schools for the Future scheme.

The development agreement between the academy trust and the local authority will govern the commitment of the local authority to provide the works; and for the grant by the local authority and acceptance by the academy of long term land interest following completion of the works. In addition, it will also deal with academy occupation of the existing buildings and facilities while the works are in progress. PfS has produced a standard development agreement to be used on academy projects.

The authority will need to ensure regular monitoring of the development progress and an appropriate trigger for handover to the academy trust. The possible consequences of delay to the construction programme, or the possible discovery of a defect after completion of construction and other project risks also need to be considered.

Academy Buildings

The freehold ownership of the academy land and buildings will usually be held by the local authority, with the academy trust being granted a long term lease. Where the land that is to be used by the academy is not already owned by the local authority (for example if the predecessor school is a foundation or a voluntary school), transfer of the land to the local authority may need to be arranged. The retention of the freehold allows the authority to have greater control over the use and upkeep of the academy complex, and to ensure the land and buildings revert to the authority if the academy use should cease.

A short term lease will be required when the academy needs to take up occupation of the academy site either before the development agreement has been exchanged or where relocation to new buildings (which may be on a different site) is to follow construction. The terms of the short term lease need to be agreed between the local authority and the academy trust. While the terms of the short term lease and the long term lease are similar, as the short term lease may relate to buildings nearing the end of their useful life the academy may need to be protected against onerous repairing obligations.

While construction works for the new academy buildings are in progress and prior to the grant of the long term lease, the academy will occupy under a licence and must co-operate with decanting arrangements which enable the works to be procured. Full occupation will be taken upon practical completion but continued through the defects liability period under the licence to occupy. There is a PfS standard form occupational licence included in the development agreement.

A long term lease will be usually be granted by the authority to the academy trust following the expiry of the defects liability period. A PfS standard form long term lease is attached to the development agreement. The long term lease gives the academy trust the right to occupy the refurbished/new build academy buildings (usually for a period of 125 years), subject to the conditions and obligations in the lease. Under the lease the academy trust will have full responsibility for repairs and maintenance and payment of outgoings.

The Future

The future of academies will very much be dependent upon any changes in the political landscape. The results of the general election may prompt further changes to the programme, with the prospect of new academy models coming forward inspired by the growth of independent charter schools in the US, and free schools in Sweden.

What is clear is that the role and future shape of academies will be at the heart of the future development of educational policy over the next year. There is an emerging consensus that the future of education provision requires greater diversity, and future models for academies will raise contentious issues of parental choice, freedom from the state, the involvement of profit-making companies in state education and the state control of admissions policies. These issues are likely to be very high on the agenda for the forthcoming general election, putting academies right up at the top of the political debate.

Graham Burns is a director and solicitor at TPP Law (www.tpplaw.com), which advises local authorities and academy sponsors on academy projects. The firm has recently published “A Guide to Academies” which provides an overview of the academy set up process, providing information on each of the main contractual documents including the funding agreement, the deed of gift, the development agreement and the design and build contract.