*/
Thomas Ogg explains how to navigate the route safely.
Not many barristers have opened a Free School, but I’m one of them: I’m chair of governors of the East London Science School, which opened in September 2013. Consequently, I have a good idea of the potential legal pitfalls of setting up a free school, and the extent to which this will generate work for lawyers.
As to work for lawyers, although presently there are only around 200 Free Schools in the UK, there will be many more in the future. This is for two reasons. First, there is a severe shortage of school places: the Department for Education (‘DfE’) has already allocated funding for 400,000 new places by 2018. Second, under the ‘Free School presumption’ introduced from 2012 by the coalition government, most new schools will be Free Schools (see section 6A of the Education and Inspections Act 2006). One sign of this changing picture is that, as a direct result of the Free School presumption, the New Schools Network sends near weekly emails to potential Free School proprietors concerning local authority proposals to open a new school in their area.
What are the hurdles?
Much of the process of setting up a Free School is itself highly practical (e.g. finding a site), and policy orientated (e.g. the application to the DfE in to open a Free School). There are, however, important legal hurdles along the way.
Governance
The first issue to address is the governance of the Free School. The proprietor of the Free School is the “Academy Trust”, which is a company limited by guarantee and is also deemed to be a charity by the Academies Act 2010. As with any company, the academy trust has members and directors, and the normal rules for conflicts of interest apply. Given that the academy trust runs the school, it is also important to draft the academy trust’s articles of association very carefully. In my view, the DfE’s model articles are eminently improvable.
As an aside, the demands upon governors of all types of school have increased in the last few years. An indication of this is that Ofsted now specifically focus on governance when inspecting a school. The governing bodies of Free Schools also have a series of responsibilities that maintained schools do not. For example, they directly employ their staff, hold the property rights to the land on which the school is based, and they are the admissions authority for the school. Consequently, the skills of lawyers are particularly useful for Free Schools because their governing bodies have responsibilities over such a wide area. Obviously, it helps if you have a specialism in public law, and education law in particular. But the particular skills held by barristers – getting through reams and reams of paperwork, distilling down what is important, and avoiding unnecessary distractions – are helpful for any governing body.
Consultations
Consultation is an area that has seen a great deal of litigation in recent years, but so far no legal challenge has been mounted to the consultation that is required of a Free School proprietor prior to opening. The courts have generally declined to intervene unless something has gone “clearly and radically wrong” with the consultation process. My prediction is that a Free School is only likely to be successfully challenged if they misguidedly concentrate in their consultation on peripheral matters (such as how the school should be run), and thereby fail to ask the statutorily required question: whether the Free School should be opened at all.
Planning permission
Formerly, one of the biggest practical barriers to opening a Free School was the acquisition of planning permission for the site on which the school was to open. However in January 2013 the government announced a package of measures which in effect removed most of the difficulties with planning permission: Free Schools may open in almost any building for a year without planning permission, and there is extra time to win the permanent planning permission required to remain in their buildings after that first year.
Funding agreements
The most serious legal problem that a proprietor of a Free School could face arises from a failure to adhere to their funding agreement. The funding agreement between the Free School and the DfE is the way in which the DfE imports the Free Schools’ obligations in respect of the curriculum, free school meals, the admissions code and many other matters that are required by dint of statute alone for maintained schools.
The DfE’s missive to the Al-Madinah School highlights the degree to which the funding agreement is central to the dealings between a Free School and the DfE. Indeed, the DfE’s model funding agreement provides extraordinarily broad powers to the DfE to terminate a funding agreement – and, so many might say, rightly so. It is worth noting that the DfE insists that the model funding agreement may only be deviated from in “exceptional circumstances”.
As the funding agreement between a Free School and the DfE is a contract like any other, it is relatively clear what the relevant principles are if the Secretary of State wishes to enforce the contract. The real “remedy” sought by the DfE in respect of the Al-Madinah School is termination of the funding agreement, but in principle, the DfE could also sue for damages, or exceptionally, specific performance. An untested but intriguing possibility is that a parent might seek to enforce an obligation in a Free School funding agreement. In contract, much would rest on the Contracts (Rights of Third Parties) Act 1999, and it is interesting to note that the DfE’s model funding agreement does not exclude the operation of that Act, as many commercial contracts do. Alternatively, a parent might judicially review a Free School, arguing that they had a legitimate expectation that the funding agreement would be adhered to. However, neither route has been tested in respect of an academy or a Free School.
There are pitfalls aplenty for those setting up a Free School, and many corresponding opportunities for the legal profession.
Thomas Ogg, 11 KBW
A version of this article first appeared in New Law Journal 1.11.13.
Tom is a barrister at 11KBW, specialising in education law. He is currently chair of governors at
the East London Science School, and author of Boxing Clever.
As to work for lawyers, although presently there are only around 200 Free Schools in the UK, there will be many more in the future. This is for two reasons. First, there is a severe shortage of school places: the Department for Education (‘DfE’) has already allocated funding for 400,000 new places by 2018. Second, under the ‘Free School presumption’ introduced from 2012 by the coalition government, most new schools will be Free Schools (see section 6A of the Education and Inspections Act 2006). One sign of this changing picture is that, as a direct result of the Free School presumption, the New Schools Network sends near weekly emails to potential Free School proprietors concerning local authority proposals to open a new school in their area.
What are the hurdles?
Much of the process of setting up a Free School is itself highly practical (e.g. finding a site), and policy orientated (e.g. the application to the DfE in to open a Free School). There are, however, important legal hurdles along the way.
Governance
The first issue to address is the governance of the Free School. The proprietor of the Free School is the “Academy Trust”, which is a company limited by guarantee and is also deemed to be a charity by the Academies Act 2010. As with any company, the academy trust has members and directors, and the normal rules for conflicts of interest apply. Given that the academy trust runs the school, it is also important to draft the academy trust’s articles of association very carefully. In my view, the DfE’s model articles are eminently improvable.
As an aside, the demands upon governors of all types of school have increased in the last few years. An indication of this is that Ofsted now specifically focus on governance when inspecting a school. The governing bodies of Free Schools also have a series of responsibilities that maintained schools do not. For example, they directly employ their staff, hold the property rights to the land on which the school is based, and they are the admissions authority for the school. Consequently, the skills of lawyers are particularly useful for Free Schools because their governing bodies have responsibilities over such a wide area. Obviously, it helps if you have a specialism in public law, and education law in particular. But the particular skills held by barristers – getting through reams and reams of paperwork, distilling down what is important, and avoiding unnecessary distractions – are helpful for any governing body.
Consultations
Consultation is an area that has seen a great deal of litigation in recent years, but so far no legal challenge has been mounted to the consultation that is required of a Free School proprietor prior to opening. The courts have generally declined to intervene unless something has gone “clearly and radically wrong” with the consultation process. My prediction is that a Free School is only likely to be successfully challenged if they misguidedly concentrate in their consultation on peripheral matters (such as how the school should be run), and thereby fail to ask the statutorily required question: whether the Free School should be opened at all.
Planning permission
Formerly, one of the biggest practical barriers to opening a Free School was the acquisition of planning permission for the site on which the school was to open. However in January 2013 the government announced a package of measures which in effect removed most of the difficulties with planning permission: Free Schools may open in almost any building for a year without planning permission, and there is extra time to win the permanent planning permission required to remain in their buildings after that first year.
Funding agreements
The most serious legal problem that a proprietor of a Free School could face arises from a failure to adhere to their funding agreement. The funding agreement between the Free School and the DfE is the way in which the DfE imports the Free Schools’ obligations in respect of the curriculum, free school meals, the admissions code and many other matters that are required by dint of statute alone for maintained schools.
The DfE’s missive to the Al-Madinah School highlights the degree to which the funding agreement is central to the dealings between a Free School and the DfE. Indeed, the DfE’s model funding agreement provides extraordinarily broad powers to the DfE to terminate a funding agreement – and, so many might say, rightly so. It is worth noting that the DfE insists that the model funding agreement may only be deviated from in “exceptional circumstances”.
As the funding agreement between a Free School and the DfE is a contract like any other, it is relatively clear what the relevant principles are if the Secretary of State wishes to enforce the contract. The real “remedy” sought by the DfE in respect of the Al-Madinah School is termination of the funding agreement, but in principle, the DfE could also sue for damages, or exceptionally, specific performance. An untested but intriguing possibility is that a parent might seek to enforce an obligation in a Free School funding agreement. In contract, much would rest on the Contracts (Rights of Third Parties) Act 1999, and it is interesting to note that the DfE’s model funding agreement does not exclude the operation of that Act, as many commercial contracts do. Alternatively, a parent might judicially review a Free School, arguing that they had a legitimate expectation that the funding agreement would be adhered to. However, neither route has been tested in respect of an academy or a Free School.
There are pitfalls aplenty for those setting up a Free School, and many corresponding opportunities for the legal profession.
Thomas Ogg, 11 KBW
A version of this article first appeared in New Law Journal 1.11.13.
Thomas Ogg explains how to navigate the route safely.
Not many barristers have opened a Free School, but I’m one of them: I’m chair of governors of the East London Science School, which opened in September 2013. Consequently, I have a good idea of the potential legal pitfalls of setting up a free school, and the extent to which this will generate work for lawyers.
As we look ahead to Justice Week 2022, the sustainability of the Criminal Bar remains a critical issue for the government to address
Opportunity for female sopranos/contraltos in secondary education, or who have recently finished secondary education but have not yet begun tertiary education. Eligibility includes children of members of the Bar
Fear of the collection and test process is a common factor among clients, especially among vulnerable adults in complex family law cases. Cansford Laboratories shares some tips to help the testing process run as smoothly as possible
Casey Randall explains how complex relationship DNA tests can best be used – and interpreted – by counsel
Casey Randall, Head of DNA at AlphaBiolabs, explores what barristers need to know about DNA testing for immigration, including when a client might wish to submit DNA evidence, and which relationship tests are best for immigration applications
Julian Morgan reminds barristers of the top five areas to consider before 5 April
If the Bar cannot define and prohibit bullying behaviour, what chance do we have of persuading the Judiciary to do so? Darren Howe QC and Professor Jo Delahunty QC's call to action on codification plus suggested strategies for dealing with bullying from the Bar and Bench
The case ofR v Brecanihas complicated matters for defence lawyers. Emma Fielding talks to gang culture expert, Dr Simon Harding about County Lines, exploitation and modern slavery
Barristers are particularly at risk of burnout because of the nature of our work and our approach to it but it doesnt have to be this way. Jade Bucklow explores how culture, work and lifestyle changes can rejuvinate our mental health...
The Schools Consent Project (SCP) is educating tens of thousands of teenagers about the law around consent to challenge and change what is now endemic behaviour. Here, its founder, barrister Kate Parker talks to Chris Henley QC about SCPs work and its association with Jodie Comers West End playPrima Facie, in which she plays a criminal barrister who is sexually assaulted
Following the launch of the Life at the Young Bar report and a nationwide listening exercise, Michael Polak and Michael Harwood outline the Young Barristers Committees raft of initiatives designed to address your issues of concern
