Firing the gun on free schools

The Department for Education (DfE) has launched its free schools policy. Graham Burns sets out the key elements of the new proposals.

The details of the new free school policy have now been announced. This is an open invitation to parent and teacher groups to establish new schools. A capital fund of £50m has been earmarked to assist in opening some new free schools for September 2011. The forthcoming comprehensive spending review will also favour free schools in terms of making funding decisions.

It is clear that these announcements mean that the government is very serious about implementing this policy, and the open invitation to new groups to make their applications is bound to lead to a large number of applications. This announcement is a further important strand of a new education policy which is likely to significantly alter the landscape for state funded schools.

It is envisaged that free schools will be similar to academies, running as publicly funded independent state schools and subject to the same rules on admissions, special educational needs and exclusions. Unlike academies, free schools are likely to be brand new schools rather than converting existing schools. Maintained schools will not be able to convert to free school status, however existing independent schools can convert, providing they meet the required criteria. Converting independent schools will not be able to retain any academic selection arrangements.

The DfE indicates that potential providers of free schools could include charities, businesses, universities, educational groups, teachers and parent groups. Interested parties are encouraged to initially contact New Schools Network, which has been allocated a grant of £500,000 to provide advice and guidance to such groups.

Following initial advice, potential providers will need to submit a proposal to the DfE outlining the key details of their project. If the proposals are approved by the Secretary of State, a full business case will need to be submitted setting out the proposer's aims and objectives. Providing the full business case is approved, a funding agreement with the Secretary of State can be signed and the establishment of the school can go ahead. It is envisaged that the first free schools will open in September 2011.

Like academies, it is suggested that free schools will be set up under a non-profit making trust. The trust will be able to contract out the running and management of the school to third party organisations with educational experience, and this can include profit-making organisations. The DfE free school proposal form requires that potential providers indicate whether the provider intends to work with a third party organisation. It is understood that no change in legislation will be required to allow free schools to enter into contracts with third party providers for the running of the school.

Any providers wishing to set up new schools will need to meet DfE criteria. The criteria require providers to be suitable, meeting any necessary due diligence and CRB checks. Providers will need to show that they have clear educational aims and objectives and the capability and capacity to implement these objectives. It will also be essential that providers can show that their plans are financially viable. Issues such as premises, leadership and management, ability to meet independent school standards and ability to meet the terms of the funding agreement will also need to be considered by any potential providers.

In terms of premises, any potential providers that require capital funding will need to show how their approach will support educations aims, increase parental choice, allow flexibility for example for the school to grow and develop, and provide benchmarked value for money. The DfE will work with Partnerships for Schools (PfS) to support providers in finding possible sites for the new school.

The Secretary of State has already written to local authorities to set out the free school proposals and encouraging local authority engagement. The DfE suggests that potential proposers discuss their plans with their relevant local authority, however local authority approval is not needed to set up a free school.

The key elements of the free school proposals are summarised below:

• Free schools will be set up as independent publicly funded schools subject to the same legal requirements as academies

• They will usually be set up as brand new schools rather than a conversion of an existing school - although independent schools will be able to convert
• Proposers may include charities, businesses, universities, educational groups, teachers and parent groups
• Providers will need to meet DfE criteria
• Funding levels for free schools will be comparable to other state schools
• Providers will need to consider potential sites for the school, with the DfE and PfS providing support
• Some capital funding for the refurbishment of old buildings will be made available through the reallocation of the Harnessing Technology Fund to restart the Standards and Diversity Fund
• A wider range of potential school sites will be made available by removing the need for a change of use consent
• The Secretary of State for Communities and Local Government will update guidelines for local planning authorities to allow a presumption in favour of setting up new schools
• Depending on the needs of the individual provider, a limited budget will be made available to potential providers to put towards the costs of consultancy and project management, with further funding released (e.g. for headteacher recruitment and equipment purchases) once the final business case has been approved
• Like academies, free schools will be set up under a non-profit making trust
• Proposers can outsource the education and management services for the school to third party organisations, including private companies

It is clear that there are a substantial number of parent and teacher groups who are very keen to establish new schools. No indication has been given yet as to how many new schools will be established, and the funding implications for the provision of new premises is likely to be a factor in determining how many new schools will be able to open by September 2011.

For groups who have identified suitable premises which are publicly owned (such as a closing middle school) the pathway to a new school is likely to be more straightforward. In the absence of significant capital funding going forward, groups will be looking at alternative lease models to identify new ways of procuring suitable premises, and the involvement of new providers in the provision of school premises is likely to be key factor in the successful delivery of the policy.

This announcement, coupled with the anticipated large number of schools converting to academy status, establishes a very new and distinctive approach to the delivery of state education.

Graham Burns is a Director and Solicitor at TPP Law Limited (www.tpplaw.co.uk). He is advising a number of school groups on the free schools policy and can be contacted via This email address is being protected from spambots. You need JavaScript enabled to view it.