EDUCATION BUILDING AND DEVELOPMENT OFFICERS GROUP (EBDOG)

1. EDUCATION BUILDING AND DEVELOPMENT OFFICERS GROUP (EBDOG) CONFERENCE 2012 ‘Academies – A legal perspective for Local Authorities’

2. FOOT ANSTEY SOLICITORS Why are we here?

3. AIM OF THE SESSION • To gain a better general understanding of what Academies are and; • To understand the legal process of transition, and; • To understand the land and property implications for you as Building and Development officers

4. GOVERNANCE MODELS & OPTIONS – MAINTAINED OR SPECIAL Conversion Options Standard Models • Foundation (without a foundation) • “Soft” federation (collaboration) • “Hard” federation • Trust • Single school • Multi-school • Cooperative Trust • Community • Voluntary Controlled • Voluntary Aided • Academies Single Academy Multi-Academy • Collaborative Partnership • Umbrella Trust • Academy Cluster • VA & VC/Community Academy Cluster Cooperative Academy Sponsored Academy

5. Academies • Academies are centrally state-maintained but independently-run schools • Established by Labour as a way of turning around the worst performing Schools and schools in disadvantaged areas • Academies Act 2010 • Opened up the Academies programme for primary, secondary and special schools to apply to become Academies either independently or as Academy chains or clusters

6. ACADEMIES – legal entity • Academies are new legal entities • Academies are charitable companies limited by guarantee - purpose and powers enshrined in the Memorandum and Articles of Association of the Company.

7. WHAT ACADEMIES ARE NOT…. • Academies are NOT Independent Schools in the same sense as Private Independent Schools. • Subject to legislation, regulations and rules

8. THE LEGAL PROCESS OF CONVERSION • 5 Main areas: • Governance • Property • Employment • Funding • Transfer of non-property assets

9. THE LEGAL PROCESS OF CONVERSION – GOVERNANCE (1) School (aka Academy) Articles may allow LA to appoint up to 1 Governor but not compulsory LA has no formal role Academies receive funding direct from central government (EFA) The Academy Trust (see next slide) • Company registered at Companies House & governed by Articles of Association • Enters into Funding Agreement with Secretary of State to receive 100% funding direct instead of via the LA with up to 10% top-slice deducted • Responsible for the running of the school • Employ staff • Admissions authority • Own land and buildings (either freehold or 125 yr lease) • Strategic direction, accountable, critical friend • Corporate body with separate legal identity • ‘Excepted’ charitable status Principal • Responsibility for the day-to-day management of all aspects of the school • Delegates duties to other senior leaders and staff

10. THE LEGAL PROCESS OF CONVERSION – The Academy Trust ACADEMY TRUST Company registered at Companies House & governed by Articles of Association Enters into a Funding Agreement with Secretary of State Directors / Governors / Trustees (“the Board”) Responsible for overseeing the day to day running of the Academy Usually the same people as are sat on the existing Governing Body Members “Guardians" of the company Certain residual powers reserved to them in Articles Provide a "guarantee" of £10 towards the debts of the Academy Trust in the event it is wound up and cannot pay its debts

11. THE LEGAL PROCESS OF CONVERSION – The Academy Trust • Members • Must include Chair of Governors • Also normally includes Principal and other Directors/Governors/Trustees • Where school was previously VA / VC the Church will expect representation at Member and Director/Governor/Trustee level • Company Secretary • Responsible for the smooth administration of the company • Role includes keeping minutes of meetings, calling Members and Directors meetings, filing documents at Companies House and ensuring statutory registers are maintained

12. MULTI-ACADEMY: COLLABORATIVE PARTNERSHIP COLLABORATIVE PARTNERSHIP Written agreement(s) in place between the academies aimed at raising standards across the partnership Similar to “soft” federation SCHOOL 1 ACADEMY TRUST Governed by own Articles of Association & Funding Agreement SCHOOL 2 ACADEMY TRUST Governed by own Articles of Association & Funding Agreement SCHOOL 3 ACADEMY TRUST Governed by own Articles of Association & Funding Agreement

13. MULTI-ACADEMY: UMBRELLA TRUST UMBRELLA TRUST Same model as ‘The Trust’ in a Trust school (Directors/Trustees & Members etc) Directors/Trustees & Members likely to be made up of representatives of schools & possibly external partners Directors/Trustees have power to elect majority or minority of the Governors/Directors/Trustees of each academy’s Academy Trust (to be determined before conversion) SCHOOL 1 ACADEMY TRUST Governed by Articles of Association but own Funding Agreement SCHOOL 2 ACADEMY TRUST Governed by Articles of Association but own Funding Agreement SCHOOL 3 ACADEMY TRUST Governed by Articles of Association but own Funding Agreement Similar to multi-school trust

14. MULTI-ACADEMY: ACADEMY CLUSTER ACADEMY TRUST DIRECTORS MEMBERS Governed by Articles of Association & Funding Agreement for Academy Trust SCHOOL 1 LOCAL GOVERNING BODY OR ADVISORY BODY SCHOOL 2 LOCAL GOVERNING BODY OR ADVISORY BODY SCHOOL 3 LOCAL GOVERNING BODY OR ADVISORY BODY

15. MULTI-ACADEMY: VA & VC/COMMUNITY ACADEMY CLUSTER PARTNERSHIP AGREEMENT VC ACADEMY TRUST & COMMUNITY DIRECTORS & MEMBERS Governed by Articles & Funding Agreement VA ACADEMY TRUST DIRECTORS & MEMBERS Governed by Articles & Funding Agreement SCHOOL 1 LOCAL GOVERNING BODY OR ADVISORY BODY SCHOOL 2 LOCAL GOVERNING BODY OR ADVISORY BODY SCHOOL 3 LOCAL GOVERNING BODY OR ADVISORY BODY SCHOOL 4 LOCAL GOVERNING BODY OR ADVISORY BODY

16. THE LEGAL PROCESS OF CONVERSION – Property (2) • The Interest in land passes to the AT • Trust/Foundation Schools • Community Schools • VA and VC Schools

17. THE LEGAL PROCESS OF CONVERSION - Property (2) • Identify land – the extent of it • Investigate title – registered and non-registered information • Check Trust document (VC + VA) • Report on title etc • Draft Transfer Deed/Lease/Supplemental Agreement • Complete and register with the Land Registry

18. THE LEGAL PROCESS OF CONVERSION – Employment (3) • Community Schools/VC Schools LA AT • Foundation/Trust Schools/VA Schools • Governing Body AT

19. THE LEGAL PROCESS OF CONVERSION - Employment • Staff protected from changes by TUPE for transition unless ‘economic’ technical or organisational reasons entailing changes in the workforce. • May need consultation if ‘material’ measures anticipated • New staff not bound by School Teachers pay and conditions – beware 2 Tier structuring

20. THE LEGAL PROCESS OF CONVERSION - Pensions • Teachers = the same. Unfunded ‘pay as you go’ type scheme • Support Staff = LGPS. AT takes on the liability for deficit and on-going contributions

21. THE LEGAL PROCESS OF CONVERSION - Funding (4) • Agreement between AT and Secretary of State • ‘Bums on seats’ • Capital Grant, GAG, EAG

22. THE LEGAL PROCESS OF CONVERSION – Asset Transfer (5) • A Commercial transfer agreement transferring non-property assets from LA AT • AT going forward enters into contracts with suppliers in its own name

23. LAND AND PROPERTY IMPLICATIONS • Trust Schools ) ) Freehold • Foundation Schools ) • VA Schools ) Licence • Community and VC Schools ) With LA Land ) Leasehold

24. LAND AND PROPERTY IMPLICATIONS - Leasehold • Landlord and Tenant relationship within the objects clause of the M & A’s • Key areas: • Use • Dealings • Insurance • Repair • CRC’s

25. LAND AND PROPERTY IMPLICATIONS SERVICES • Academies can buy their services where they like; e.g. other LA, same LA, Private providers. • Academies can set up their own trading subsidiary company’s to supply other Schools e.g. Catering • Multi-academies can ‘self-supply’ e.g. maintenance provision

26. GOING FORWARD • Increase in sponsored Academies • Challenges and Opportunities for LA;s • Education Act 2011 • September 2012 bottom 2 Ofsted gradings legally eligible for ministerial intervention and ‘Academisation’ • They are here to stay!

27. THANK YOU