Academies, ‘Free’ schools and the Law – A can of worms

This article is taken from David Wolfe’s blog ‘A can of worms

what’s it all about?

In England (not Scotland or Wales) people are finding that their local school wants to become an ‘academy’ or someone is proposing to set up a ‘free school’ in the area. Or they are unhappy about what an academy or (from September 2011) a free school is doing or not doing.

They want to know where they stand ‘in law’.

This blog is for anyone concerned about academies or free schools, and the law.

I have been advising parents and pupils on legal issues, and helping them with legal challenges, in relation to academies (and now free schools) since 2005. On this blog I will try to answer common Frequently Asked Questions (FAQs) about academies/free schools and the law. I can’t promise it will all make sense – a lot of the legal stuff about academies and free schools just does not make sense. But I will try to explain the complications.

I have tried to make the explanations as simple as possible. However, the danger of trying to make the descriptions too simple is that they become misleading. Most other explanations of the legal position in academies seem to gloss over important differences between academies and maintained schools, or between one academy and another. That makes them misleading. I am trying to avoid that mistake here. Sorry if that makes things sound complex. That is because the Department for Education – which I will call ‘the Department‘ – has made things complex.

Some posts on this blog provide more legal detail for the people who want technical stuff. If anything needs more explanation, please ask.

I will try to keep the information on this blog up to date. But, in the world of academies and free schools, it is not always easy to spot all the developments (it is all so complicated and so spread around – in different funding agreement, in legislation, and so on). So please let me know if something is out of date or I have missed something. Or if you think something is simply wrong (this is meant to be a place for discussion).

And please add comments.

So what’s it all about – what are these new ‘academies’ and ‘free schools’?

Once upon a time there were just two sorts of schools, public (aka ‘independent’) schools and maintained schools:

Public (or independent schools) have traditionally been private schools where parents pay fees. Most of the legal arrangements are in the contract between the parent and the school. So they vary school to school.

Maintained schools were set up and funded by local authorities (formerly called ‘local education authorities’) since 1944. Maintained schools are available to everyone in their area, free of charge. Acts of parliament specify how they run, and what they can, cannot, must and must not do.

That means that parents and pupils have the same basic legal rights around things like admissions, exclusions, SEN, complaints and so on, whichever maintained school they attend. There are different types of maintained shools: community, voluntary aided, voluntary controlled and special. Other terms were also used: grammar, comprehensive, state, state-funded, and so on. But they all refer to maintained schools or types of maintained school.

Now we have two more new types of school – academies and free schools. Here’s a very quick introduction to the legal framework.

Academies are (in law) ‘independent schools’. But instead of parents having contracts (and paying) academies operate under a contract with the Secretary of State for Education who pays the costs. The rules for running an academy are in the contract, often called a Funding Agreement. The contracts vary from one academy to the next. So the legal rights of parents and pupils can vary too. On top of that, unlike maintained schools, in academies parents and pupils have very few direct legal rights: it is harder for them to make sure that an Academy or free school sticks to the rules (as they would be able to do at a maintained school). Under the Labour Government some academies were created by converting existing maintained schools, others were new. Under the Coalition Government academies are (it seems) only being created from conversions. Where new schools are being set up from cold, they are being created as ‘free schools’

Free schools are (in law) a type of academy. There is no real legal difference between something called an ‘academy’ and something called a ‘free school’, although the individual contracts could vary and so the detail of each one could be different.

For a slightly more detailed, but still introductory, explanation see the introductory posts on academies and free schools.

Anyway, all that complexity makes it difficult for people to know their rights when it comes to academies and free schools. It is also more difficult for them to enforce those rights.

The whole thing has become a ‘can of worms’.

David Wolfe, Matrix

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3 Responses to Academies, ‘Free’ schools and the Law – A can of worms

  1. Barbara says:

    Is it possible to get an injunction based on opposition from the whole community being opposed to academy status and a knife edge governors’ vote?

  2. Rob Shorrock says:

    It depends if the funding agreement is in place. The challenge could be the adequacy of the consultation process but more critical is the information provided for governors to make a decisions and whether impact assessments have been carried out.

    What about the decision to become an academy?

    It’s for the governors of the school to decide whether to apply to become an academy.


    They must do so in the light of accurate information and a full picture of what that means. As a legal minimum they should get proper information about, and properly take into account:

    the benefits of converting
    the disadvantages of converting
    the extra money, if any, the school would get, and on what basis
    the extra responsibilities and costs the school would take on
    the risks
    the ‘freedoms’ (but asking themselves whether the things they might actually want to do with those freedoms are things they cannot do already)
    the impact on pupils
    the impact on teachers
    the impact on other staff
    the impact on the community
    the impact on other schools
    That information should also be part of the consultation process.

  3. Barbara Henderson says:

    Can you tell me if it is too late to legally challenge a decision for a maintained school to become an academy once they have officially signed and agreed (the conversion date is 1/11/11)? I have concerns about the consultation process and the fact that in my town there is no alternative secondary school for parents to choose, so they will be forced to send their child to an academy.

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