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From school governor to company director

07 June 2013

What changes do foundation governors experience when a Church of England school becomes an academy, asks Shan Scott

THE part played by foundation governors in voluntary aided and voluntary controlled schools is a long-established part of the maintained school system.

The foundation governors - whether ex-officio, or appointed by the diocesan board of education, a charitable trust, or elected by the parochial church council - play a crucial part in ensuring that the Church of England character of their school is preserved and developed.

Foundation governors share with their fellow governors the responsibility for the overall conduct of the school (as set out in section 21 of the Education Act 2002).

Governing bodies of schools in England are corporate bodies, which means that the governing body has a legal existence of its own, separate from that of its individual members. They have control of the school's delegated budget, and make the important decisions about the running of the school.

In voluntary aided and foundation schools, the governing body will also be the employers of the school staff, and will be responsible for admissions to the school.

So how different is it in academies? The Department for Education's website emphasises the continuity when it says that: "The principles and responsibilities of governance are the same in all academies as they are in maintained schools."

Some important things do, indeed, stay the same. Academies are inspected by OFSTED on the same basis as maintained schools, and have to act very similarly to maintained schools so far as school admissions are concerned.

Governors of church schools that become academies, however, will understand that some things change. The DfE website goes on to say: "The governing body [of an academy] has greater autonomy." This is,

at least in part, because some of the requirements imposed on maintained schools (to follow the national curricu- lum, for example) do not apply to academies.

Academies are independent schools. This means that they are not subject to the law that applies to maintained schools - although some important elements of the law on maintained schools are applied to academies through their funding agreements - such as on admissions.

While much of the law relating to maintained schools may not apply to academies, some of the law relating to independent schools does. On the question of complaints, for example, an academy is not covered by the requirements on maintained schools to have a complaints procedure. It is covered, however, by the requirement on independent schools to have a complaints procedure. So it is wise for an academy principal, and governing body, to become familiar with the Education (Independent School Standards) (England) Regulations, known as the Independent Schools Standards.

There is another significant change. As a type of organisation, an academy trust is quite different from a maintained-school governing body. Maintained-school governing bodies are created by statute, and their corporate status is conferred by statute. Academies, on the other hand, are charitable companies limited by guarantee. Thus the academy trust has corporate status, too, besides being a charity.

The company directors are also the charity's trustees. Whether an academy chooses to refer to this group as directors, trustees, or, indeed, governors, the part that they play is the same.

To quote the DfE website again: the academy trust (under the control and direction of its directors) "is the legal entity that will be responsible for the running of the school and entering into contracts. The academy trust will be able to take out employers' liability insurance (like any other employer of staff).

"Liabilities to external parties would ordinarily be those of the academy trust (a company with a separate legal entity and not the governors themselves). Under the articles of association, the academy trust is required to provide indemnity insurance to cover the liability of its governors.

"The members of the academy trust will be liable to contribute up to £10 if the academy trust is wound up. As the academy trust is a charitable company, the governors are also directors and charitable trustees, and will therefore need to comply with obligations under company and charity law."

Of course, the governing bodies of voluntary schools, too, are charities. Academies - like voluntary schools - are exempt from registration with the Charity Commission.

To sum up, then: the change from maintained to academy status means a different framework, and some different requirements. It will probably mean more of a change for the governing body of a voluntary controlled school than a voluntary aided school. But the core principle of responsibility for oversight of the school, and, for church schools, ensuring that the Christian message is at the core of the school's work, remains the same.

Shan Scott is an educational adviser to Lee Bolton Monier-Williams, legal advisers to the National Society.

THE duties of school governing bodies have grown significantly over the past 25 years. But now, with the increasing autonomy of schools, the part that they play has never been more important. Their most crucial responsibility, of course, is the appointment of the head teacher: their choice can make or break a school. But every aspect of the way a school is run is in their purview.

Governors are the keepers of standards. They are responsible for the premises, and must deal with complaints. Where schools are voluntary aided, or academies, they are also the employers of staff.

In C of E schools, the foundation governors (representing the Church) must guard the Christian character of the school. Governors have to ask questions - and must know which questions to ask. The best governor, it is said, is "a critical friend".

In February, the chief schools inspector, Sir Michael Wilshaw, proposed that some governors should be paid, and appointed for their professional and leadership experience. The idea met with a mixed response.

The number of governors, nationwide, has not been counted, but the National Governors' Association estimates that there are between 300,000 and 350,000. The 4620 C of E schools each have governing bodies with ten- to 20-plus members, depending on the size of the school.

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