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EDUCATION BUILDING AND DEVELOPMENT OFFICERS GROUP (EBDOG). CONFERENCE 2012 ‘Academies – A legal perspective for Local Authorities’. FOOT ANSTEY SOLICITORS. Why are we here?. AIM OF THE SESSION. To gain a better general understanding of what Academies are and;

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Education building and development officers group ebdog

EDUCATION BUILDING AND DEVELOPMENT OFFICERS GROUP (EBDOG)

CONFERENCE 2012

‘Academies – A legal perspective for Local Authorities’


Foot anstey solicitors

FOOT ANSTEY SOLICITORS

Why are we here?


Aim of the session

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


Governance models options maintained or special

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


Academies

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


Academies legal entity

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.


What academies are not

WHAT ACADEMIES ARE NOT….

  • Academies are NOT Independent Schools in the same sense as Private Independent Schools.

  • Subject to legislation, regulations and rules


The legal process of conversion

THE LEGAL PROCESS OF CONVERSION

  • 5 Main areas:

  • Governance

  • Property

  • Employment

  • Funding

  • Transfer of non-property assets


The legal process of conversion governance 1

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


The legal process of conversion the academy trust

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


The legal process of conversion the academy trust1

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


Multi academy collaborative partnership

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


Multi academy umbrella trust

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


Multi academy academy cluster

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


Multi academy va vc community academy cluster

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


The legal process of conversion property 2

THE LEGAL PROCESS OF CONVERSION – Property (2)

  • The Interest in land passes to the AT

  • Trust/Foundation Schools

  • Community Schools

  • VA and VC Schools


The legal process of conversion property 21

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


The legal process of conversion employment 3

THE LEGAL PROCESS OF CONVERSION – Employment (3)

  • Community Schools/VC Schools

    LA AT

  • Foundation/Trust Schools/VA Schools

  • Governing Body

AT


The legal process of conversion employment

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


The legal process of conversion pensions

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


The legal process of conversion funding 4

THE LEGAL PROCESS OF CONVERSION - Funding (4)

  • Agreement between AT and Secretary of State

  • ‘Bums on seats’

  • Capital Grant, GAG, EAG


The legal process of conversion asset transfer 5

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


Land and property implications

LAND AND PROPERTY IMPLICATIONS

  • Trust Schools)

    )Freehold

  • Foundation Schools)

  • VA Schools)Licence

  • Community and VC Schools)

    With LA Land )Leasehold


Land and property implications leasehold

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


Land and property implications services

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


Going forward

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!


Thank you

THANK YOU


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