DIVISION SECRETARIES BRIEFING 12-14 October 2011 FREE SCHOOLS WORKSHOP Celia Dignan

1. DIVISION SECRETARIES BRIEFING 12-14 October 2011 FREE SCHOOLS WORKSHOP Celia Dignan Principal Officer (Privatisation, Administration and Education Review) Education and Equalities Department, NUT Tel: 020 7380 4717 c.dignan@nut.org.uk

2. Number of Free Schools 24 Wave 1 free schools opened last month: • 17 primaries, five secondaries and two all-through schools; • five former private schools; • four run by academy chain sponsors and two by private companies; • 10 have a faith character. Eight additional Wave 1 applicants to open in 2012. 55 Wave 2 free schools approved to open in 2012 and beyond.

3. Free School Applications Any suitable proposer can apply to open a free school including charities; academy sponsors; universities; private schools; community groups; faith groups; teachers; parents; or businesses. Proposers must demonstrate some evidence of ‘parental demand’.

4. Information from applicants (1) • the applicant group; • the proposed school; • the school’s educational vision and plan; • evidence of demand; • organisational capacity and capability; • premises; and • initial funding and financial viability.

5. Contextual Factors • the age range of the free school; • its overall cost and value for money; • the level of deprivation in the community that it serves; and • the standard of education in local schools. 

6. Additional Evidence from Private Schools: • high academic standards; • exam performance; • popularity; • the school’s appeal to the parents of children who do not currently attend; • the overall cost of the school; and • compliance with financial requirements.

7. Alternative Provision and 16-19 Free Schools • The Education Bill makes provision for the establishment of alternative provision free schools and 16-19 free schools. • Subject to Parliamentary approval these will be able to open from September 2012.

8. The Legal Basis for Free Schools • Section 1 of the Academies Act 2010 allows the Secretary of State to enter into ‘academy arrangements’ (in practice that means signing a Funding Agreement with whoever is setting up the free school).

9. Impact of the Free School In most cases free schools will be ‘additional schools’ within the meaning of section 9 of the Academies Act so before approval: “The Secretary of State must take into account what the impact of establishing the additional school would be likely to be on maintained schools, Academies and institutions within the further education sector in the area in which the additional school is (or is proposed to be) situated.”

10. How is the Impact Assessed? According to DfE FAQs, the DfE “will engage with local authorities to understand the local context and circumstances” before making a final decision.

11. Where No Shortage of Places The Secretary of State will not automatically turn down a proposal simply to protect other local schools but will instead consider each application on a a case-by-case basis.

12. Proposers’ Duty to Consult (1) Section 10 of the Academies Act 2010 specifies that: “(1) Before entering into Academy arrangements with the Secretary of State in relation to an additional school, a person (i.e. the person opening the school) must consult such persons as the person thinks appropriate. (2) The consultation must be on the question of whether the arrangements should be entered into.” DfE advice says this should be done “as they deem appropriate”.

13. Proposers’ Duty to Consult (2) The NUT legal advice is that there is also a common law duty in respect of consultations as set out by a judge, Lord Justice Stephen Sedley QC, in the Court of Appeal, as follows: • consultation should be undertaken when the proposals are still in a formative stage; • adequate information should be given to enable consultees properly to respond; • adequate time should be provided in which to respond; and • the decision maker should give conscientious consideration to the response to the consultation. There is a further well established principle, that if the information is incorrect or misleading, or does not give true reasons for putting forward the relevant proposals, then this also may constitute a sufficient flaw in the consultation process to lead to a quashing of the subsequent decision

14. Legal Status (1) Free schools are legally designated as academies and “enjoy the same freedoms and flexibilities”: • determining staff pay and conditions; • control of their budget; • not obliged to follow the National Curriculum; and • set their own term dates and school days.

15. Legal Status (2) • The Academy Trust signs the Funding Agreement with the Secretary of State, appoints the governors and is responsible for employer and employee pension contributions, and for administrative matters relating to pension provision for all staff. • Staff are employed by the governing body. • Governance arrangements are set out in the Funding Agreement.

16. Relationship with LA Family Like academies, free schools operate outside the LA and the family of schools. As new schools (or former private schools) they are less likely to see the benefits of collaboration and mutual support than a maintained school that has become an academy.

17. Admissions (1) Set out in the FA but for mainstream free schools must be ‘inclusive’. Free schools must participate in the coordinated admissions processes in their area once they have signed the FA, however, in their first year they may be outside the coordinated process. Parents submit applications to the LA which offers places (once the free school has informed the local authority who has priority for admission).

18. Admissions (2) Faith free schools – 50% of places for faith and 50% open to non-faith applicants unless undersubscribed when every child who has applied must be admitted. The Government is considering whether to “facilitate enabling the children of free school applicants to attend, whilst still maintaining a set of fair admission arrangements.” Stand alone 16-19 free schools will not have to abide by the School Admissions Code and will be able to select pupils, based on GCSE grades or other criteria and interview prospective students.

19. QTS Free schools are mostly not required to employ qualified teachers. Exceptions are the SENCO and the designated member of staff for looked after children (this could be the same person as the SENCO) who must have QTS.

20. Organising Opportunities (1) The employment of non-qualified teachers clearly has both educational and recruitment and organising implications for the Union. However the fact that at least one teacher has QTS means there is at least one current or potential NUT member in every free school. This provides recruitment, organising and bargaining opportunities for the Union.

21. Organising Opportunities (2) Impact assessment – opportunity to campaign and to gain the support of the LA and neighbouring schools – heads, teachers, governors and parents. Submit evidence of the negative impact of a free school locally (e.g. on admissions/pupils profile/ funding of neighbouring schools). Proprietors’ duty to consult – raise awareness of the negative impact of a free school.

22. Further information Further information and campaigning resources available at: www.teachers.org.uk/freeschools Please keep the Union’s Privatisation Unit updated on local developments (as well as Regional Office): c.dignan@nut.org.uk