AAA legal advice sheet
This advice is based on advice from different sources. You should not proceed without seeking your own legal advice as every case if different. However it sets out the two main areas in which legal challenges have met with some success – consultation and public sector equalities duties.
1. The Academies Act imposes a duty to consult prior to the school becoming an academy which is set out in section 10 of the Act. It states that:
Section 5 Consultation on Conversion
(1) Before a maintained school in England is converted into an Academy, the school’s governing body must consult such persons as they think appropriate.
(2) The consultation must be on the question of whether the school should be converted into an Academy.
(3) The consultation may take place before or after an Academy order, or an application for an Academy order, has been made in respect of the school…”
Consequently a failure to do so may render the schools open to legal challenge. Consultation must take place before a funding agreement is signed by the Secretary of State.
2. The Academies Act does not specify who must be consulted so it allows s some discretion as to whom it chooses to consult and the timing of the consultations. Some schools and LAs have interpreted this to mean that they don’t have to consult parents or pupils. Article 12 of UN Convention on the Rights of the Child stipulates that children have a right to be consulted on all matters affecting their education. In addition the law requires schools to consult somebody and it would be irrational if the schools failed to consult parents or children.
3. Many schools are consulting but adopting sham consultations. Once a body has decided to consult it must do so lawfully and there is a mass of case law on what this means. What is the extent of the common law duty of consultation? It has been set out by a judge, Stephen Sedley QC as:
- 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;
- The decision maker should give conscientious consideration to the response to the consultation.
To this could be added a further principle.
- 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.
Where the decision maker knows that a significant number of people affected by the proposal may not speak English then it is probably good practice to provide a version or versions of the consultation document in the principle language of those likely to be affected by the proposal.
4. Staff, parents and pupils should be given proper information to allow an informed response. The case of Coughlan confirms that for a consultation to be lawful, it “must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response.” The issue of timing is also important. The Sedley recommendations are 12 weeks but many governing bodies are allowing only 4 or less.
45. In addition to case law there is now substantial guidance available both from the Cabinet Office which is more general but also guidance from the National Council of Governor Services which deals specifically with guidance for consultation on academy status. It states
“In order for the consultation to be meaningful, full information on the implications would need to be provided. Information could include: Main advantages identified by the governing body – including what you would do differently with constraints removed
The disadvantages that the governing body considered details of the proposed academy arrangements; details of the proposed governance arrangements including details of the directors of the company which will enter into the Academy arrangements and details of the composition of the governing body;
any proposed changes in the arrangements for the curriculum, for special educational needs, for pupil discipline, exclusion and for complaints, and confirmation that there will be no change in the admissions arrangements;
details of the additional money which would be available to the school (either as capital or revenue funding) if it became an academy;
details of any additional obligations and costs which fall on the school if it became an academy; and details of the support that is proposed to be given to other schools and any other possible effect on other schools.
2. Public Sector Equality Duties
When deciding whether or not to become an academy the Governing Body has a clear legal duty to have ‘due regard’ to the need to promote race, gender and disability equality and tackle discrimination. They need to complete equality impact assessments both within the school and for the wider community. There has been a very recent judgement involving London Councils. This related to the failure to do an equalities impact assessment. Many schools do not appear to have conducted any equalities impact assessment. This is open to legal challenge.
What should you do next?
1. Contact the AAA office for further advice
2. Consider appointing your own solicitor. You may need to find someone who can apply for legal aid.
3. Gather all the relevant documents together.
4. If the consultation is still on-going, write to the school to require detailed information on the proposed implications, business plan etc
5. Write to the Secretary of state for Education asking him to delay signing an academy order for your school until these matters have been resolved
6. Consider a press statement and local public meeting to inform parents and the local community