THE 2010 Academies Act changed the rules for setting up and
running academies, and changed their Regulator.
Since then, I have been increasingly concerned that the
independence of the directors running an academy, a multi-academy
trust, or, indeed, a chain of academies is being eroded by regular
intervention from Whitehall.
The pre-2010 academies were registered as charities at the
Charity Commission, after the independent- school governance model
of a charitable company, and their independence was respected. But,
more and more, we are seeing evidence that the freedoms once
espoused by the Government, and embraced by many of the early
converters after 2010, are being replaced with control from central
government - control, moreover, that is uncertain of its direction
One month, an academy trust or chain seems the flavour of the
month with the DfE; the next, not so. In the first half of this
Parliament, tiny academies were set up as stand-alone ventures
which the DfE would be unlikely to sanction now. These days, policy
favours multi-academy trusts, or, very recently, mini-multi-academy
trusts. The single converter academy is now rare, particularly at
Since 2010, academies have been exempt from regulation by the
Charity Commission; their new Principal Regulator is the Secretary
of State for Education, or, in practice, the Education Funding
Agency. It has a duty both to regulate academies and to promote the
academy agenda, which means increasing their numbers. The directors
of an academy, however, are also its charity trustees; they still
have to follow charity law, despite the academy's being an exempt
charity. Increasingly, the directors' duty to act reasonably and
independently is being eroded by attempts to impose a duty to
follow the directions of the Secretary of State, as the following
- The Secretary of State for Education, Nicky Morgan, imposes
changes on an academy's funding and governance arrangements through
the funding agreement. But new funding agreements with significant
changes are being imposed on new academy trusts without any
consultation with key stakeholders.
- The Academies Financial Handbook can be changed at
whim, and again imposes increasing restrictions on the directors'
ability to manage their academy.
- Recent proposed changes to the Funding Agreement contain
clauses that give the Secretary of State power to make academy
trustees' land available to other academies, and to restrict
directors' powers to change their company's articles.
- Another recent change gives the Secretary of State new and wide
powers to declare directors (or proposed directors) unsuitable.
There is no requirement for her to state the evidence, and there is
no appeal. The director cannot then be appointed, or must be
- Some academies established before 2010 were set up with an
endowment of, typically, £1.5 to £2 million; pressure is being
brought to bear on the trustees of those funds by the DfE/EFA to
pass the money on to an academy that is struggling financially.
This does not sit comfortably with a charity trustee's duty to act
independently, and in the best interests of the charity and its
future, as well as its present beneficiaries.
- THERE is evidence that, in certain cases, officials acting for
the Secretary of State are seeking to force schools with trusts to
transfer charitable property to the academy itself. The regulation
of the academy by the Education Funding Agency rather than the
Charity Commission risks the expropriation of private value by the
Certainly, my hope as a charity and education lawyer is that, as
politicians draft their manifestos before the election, they will
think carefully about wrapping academies in too much red tape, and
let these charities lead the change in educational improvement by
letting directors function properly as independent charity
If the tide is not turned, the academy agenda looks more and
more like aggressive centralisation. This may be at odds with the
Government's stated policy of increasing local autonomy, and the
Big Society agenda.
Howard Dellar is Head of the education, ecclesiastical, and
charities department at Lee Bolton Monier-Williams.