WHEN an academy partnership is under strain, its legal advisers are sometimes asked: “Whose academy is it?”
Except in a very few instances, the answer is simple: “It is the site trustees’ academy.” It does not belong to the academy trust, the local governors, the chief executive, the Principal, the Education and Skills Funding Agency (ESFA), the Secretary of State, or the diocesan board of education (DBE) — just the site trustees.
This is the legal fact. But it works only if these trustees work closely with all the other bodies just mentioned. The day-to-day life of every church academy relies on a supportive partnership.
There are two fundamental legal principles that bind this partnership together.
First, the trust deed on which the trustees hold the site dictates the church character of the school, which all the partners must ensure is upheld. The site trustees’ property must be used only in accordance with the trust deed.
In some instances, if part of the site is used for other purposes, the trustees (and therefore the academy) will lose the land back to the heirs of the original donor. The issue of ownership is far from just a formality: it is the key to the character of the school for all involved with it.
Second, the site trustees are administering a charity (as, indeed, are the directors of the academy company), and a charity is conducted for the public benefit. There is not much benefit from a poor school; so the site trustees have a duty also to keep an eye on the quality of education.
It is the task of the diocesan board of education to assist in, and oversee, the carrying out of these two basic principles for all the site trusts and academy trusts in their diocese. Like the ESFA and the Secretary of State, it is a key strategic partner and has some consequent overarching powers and functions. These are mainly set out in the Diocesan Boards of Education Measure — which is under revision at present, to be fit for the changed pattern of partnerships in the academy world.
The Measure, the Academies Act 2010, and various other pieces of legislation form the backbone of the partnership for Church of England academies.
In addition, the various powers or duties of the partners are set out in the documents that create the academy company, and which establish the legal relationship between the academy company, the site trustees, the DBE, and the Secretary of State in respect of each company and each individual academy. Together, these create the partnership and articulate the delicate balance between the powers and duties of the various partners.
THERE are three key documents: the academy company articles; the academy funding agreement; and the church supplemental agreement, which forms an appendix to the funding agreement. Sometimes, there is, in addition, a members agreement; and academies should never forget also the provisions of the Memorandum of Understanding between the Secretary of State and the Church of England, which articulates the national partnership.
In recent years, the first three have been revised by the Department for Education, in discussion with the Church of England Education Office, in the light of the development of the academies programme, of experience, of new or amended legislation, and of government policy. No doubt the Memorandum will be up for revision shortly.
Together these documents provide for:
* at least the same level of involvement of church appointees in governance as was the case before the school became an academy;
* an assurance that all members, directors, and local governors are committed to the church character of the academy;
* all senior staff appointments (and in many cases other appointments) to be of persons committed to the church character of the academy and with suitable background and skills;
* RE and worship to be provided with commitment and under the same rules that had applied before the school became an academy;
* admissions to be on the same basis as before the school became an academy;
* the DBE to be able to intervene even though there is no longer a local authority to do so;
* the consent of the site trustees to be required for any dealings with their land, any capital works, and any proposed developments or changes on their land;
* the DBE to be able to exercise, alongside the ESFA, a strategic post in respect of church academies in their diocese, and to intervene radically if something is going badly wrong that threatens the character, standards, or even existence of a church academy.
That is the skeleton. The flesh and blood depends on the partners.