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Education: The task for church schools: to get to grips with a new framework

10 June 2022

Hattie Williams examines the effect that new legislation will have on church schools


Pupils at Kidmore End CE Primary School in Oxford

Pupils at Kidmore End CE Primary School in Oxford

IN MARCH, the Government published its first White Paper on education in six years: Opportunity for All. One of the key measures included in the paper is that, by 2030, every school in England will be part of — or at least in the process of joining — a multi-academy trust (MAT).

Concerns abounded about what this change would mean for the 4632 Church of England schools in the country, all of which are supported by their diocesan boards of education (DBEs), which have varying degrees of influence and involvement in the governance of the school, depending on its type. DBEs represent an annual investment of £15 million.

When the White Paper was published, the education, ecclesiastical, and charity team at the solicitors Lee Bolton Monier-Williams LLP (LBMW) advised their clients, which include dioceses: “Beneath the surface of this Paper lurks the most fundamental change in the structure of school provision in England since the Education Act 1902.

“That change needs explicit thought and debate and should not be allowed to happen just as a consequence of the superficial changes proposed in the Paper.”

What was required, they suggested, was new primary legislation that protected church schools from becoming a form of franchise by the Government through academisation, under which the original providers, such as dioceses, would have limited or no say in their governance, or a role dictated by and variable at will by the Department for Education (DfE).

Key issues at stake included costs; quality and standards; sustaining the religious ethos and character of schools; localism; and teacher training and support.

Just two months on, however, in an astonishingly quick turnaround and without a follow-up green paper, the Government published its Schools Bill to “pave the way for all schools to join a strong multi-academy trust” by legislating a new set of academy standards, while also introducing statutory powers over MAT structures and governance. In another unusual move, the Bill was introduced in the House of Lords (News, 27 May).

In its latest guidance on the new Bill, LBMW write: “Our hopes were dashed, and our concerns now prove to be all too well founded.”

In contrast, the Church of England Education Office has produced a much more positive briefing paper in conjunction with the DfE.

WHILE the continued protection of religious education and common worship in the Bill is generally welcomed (News, 20 May), it has not provided the detail and assurances that many were hoping for regarding full academisation through the MAT structure.

A government “fact sheet” on the statutory faith protections for religious academies in the Bill, states: “This legislation will provide statutory protections so that such schools are able to retain equivalent governance arrangements to those that applied to them in the maintained sector.”

The education adviser at LBMW, David Whittington, believes, however, that by providing for universal academisation, the Bill signals the end of the dual system of schools provided by private parties (mostly Churches) or by local authorities, thus compromising the Church’s governance and, by extension, the religious character of its schools.

ACADEMIES are state-funded schools in England (directly funded by the DfE). They are independent of local authorities, and do not have to follow a national curriculum or timetable. They were first established by Labour to tackle persistently under-performing schools in 2000, initially part-funded by private organisations (including DBEs) or individuals. There are no academies in Wales or Scotland.

Under the Academies Act 2010, all schools maintained by local authorities were able to convert to academy status, and new academies were created through the Free School Programme. The direction is one way: if a local-authority school fails Ofsted, it must convert to an academy. Currently in England, there are 6684 converter academies, 2521 sponsored academies, and 613 free schools.

Multi-academy trusts, also known as academy chains, are organisations that operate more than one academy under an umbrella funding agreement. There are currently 1460 MATs in England managing two schools or more.

The Church of England has become the biggest provider of academies in the country; about one third (1535) of all church schools are now academies within 54 MATs, which are governed under C of E articles of association agreed with the DfE — a condition of their funding agreement with the DfE — and which set out the charitable purpose of the trust and its governance structure.

The remaining church schools are voluntary. Today, voluntary controlled (VC) schools, of which 1625 are C of E, are managed by the local authority, which employs staff, is responsible for admissions, agrees the RE syllabus, and can advise the governing body, on which the church governors are a minority. Voluntary aided (VA) schools, of which 1491 are C of E (mainly primary schools), are required to contribute to capital funding in return for more autonomy for the Church. In VA church schools, church governors are given an absolute majority, appoint and employ all staff, are responsible for admissions, and determine the RE syllabus.

A CRUCIAL development in the new Schools Bill is that only MATs that comprise more than 50 per cent VA converter schools will be required to have a majority of church directors and members. Since half of C of E schools are VC, “this could be a disaster for the C of E,” Mr Whittington says (in contrast, all Roman Catholic schools are VA).

It is uncertain what effect this will have on existing MATs that have church majority governance but which do not meet the 50 per cent threshold now or in future.

“Unless this is clarified, there is a risk that very few church academies will be able to have church-majority governance,” he said. “The likelihood of leaving church schools in MATs where the diocese can have little or no influence over the way the school is run would be very high. And that applies even more when you look at the new Academy Standards and intervention powers the Government have given themselves.”

The chief executive of the Oxford Diocesan Schools Trust (ODST), Anne Dellar, is also most concerned by this clause. She is married to Howard Dellar, a senior partner at LBMW. “If I had one wish to get something clarified, it is this,” she said. ODST has 41 schools, of which 22 qualify as ex-VA or similar. “Unless the Bill is clarified in Committee Stage, there remains a risk that ODST might have to say no to VC schools who want to join us going forward (there are more than 100 VC schools still maintained in the diocese), as we would not want to lose our church majority,” Ms Dellar said. This was already affecting current decision-making.

ODSTThe chief executive of the Oxford Diocesan Schools Trust (ODST), Anne Dellar

The Bishop of Oxford, Dr Steven Croft, also asked for assurances on this point during the Lords debate last month.

The C of E Education Office briefing suggests that the Secretary of State will have the power to make regulations that apply to a MAT that contains a minority of schools with a religious character: “The exact content of the regulations will be decided upon following consultation. However, we anticipate that the regulations will provide for minimum representation as a standard (a baseline). This baseline protection prevents church schools, in exceptional circumstances, from entering into secular trusts without any church representation.”

THE Bill grants a much greater level of national control over academies. Although MATs, which are all not-for-profit companies, would still be subject to both the Companies Act and Charities Act, the Bill gives the Education Secretary the power to direct MATs to meet new standards or terminate their funding agreement “in the rare cases [when] failures occur in trusts”.

The Government writes in its accompanying fact sheet: “The effect of termination can be to enable an academy, or all the academies in a trust, to be transferred to another trust or trusts; or, exceptionally, to close an academy or academies.”

Other government intervention powers include appointing an extra director of the company and if necessary, replacing all directors with interim directors (who can be paid) without consultation or agreement with the DBE (in the case of church academies).

These interventions were staggering, Ms Dellar said. “Our very soul would be ripped from us if we were forced to have standardised, centralised provision as a result of this Bill. The powers to intervene . . . surely undermine the Church’s ability to run its own MAT, even though this is not about collective worship and RE directly.”

Speaking before the publication of the Bill, about the White Paper proposals, the Ely diocesan director of Education, Mission, and Ministry, Andrew Read, was already wary of any standardising shortcuts taken by the DfE. “That could easily mean trying to encourage a central prescription to all church schools, which is not something we would welcome,” he said.

Mr Read, who also chairs the Association of Anglican Directors of Education, which meets every Friday, added: “We should be equally challenged as anybody running a public-sector organisation, but if things are not good enough and need to improve, that should never be taken as an opportunity to remove the influence of DBEs.”

Later, he said that the Government’s intentions through the Bill to protect the inherited gifts of church schooling were well articulated in the addendum policy documents. “However, as initially drafted, the Bill does not yet adequately reflect such welcome intentions, and there is clearly further work to be done to ‘hard-wire’ such promises into the final finer detail, particularly at a structural (e.g. governance) level.”

The intervention powers in the Bill go beyond those of the Charity Commission and are contrary to the provisions of the Companies Act, Mr Whittington says. “No company should be in a position where some third party can appoint its directors and disempower its members. In the same way, it is not really going to be a charity because it has no autonomy.”

OTHER concerns focus on the status of the land on which schools are built. Church schools reside overwhelmingly on church-owned land. Clauses about worship, RE, governance, employment, and admissions requirements are generally included in the endowments and form the legal basis for the religious character of most C of E schools.

In the Bill, however, there will be no statutory requirement for local authorities to transfer the sites of new academies or extensions of existing academies. The Education Office briefing says that there will be “new protections for charitable land trusts, protecting the historic foundation of the school when a church academy moves to a new site”. “New” does not necessarily mean “additional” or “better”, however, and there remains uncertainty about the legal status of existing church-school sites if they are absorbed into a MAT.

Ms Dellar is concerned that the new arrangements would disadvantage trustees. “Historic endowments could come to be alienated from schools and replaced by land provided by lease direct to the MAT without reference to religious character.

“The Bill would result in fewer proceeds of sale accruing to CSUSTs [Church Schools Uniform Statutory Trusts] that provide many DBEs with significant proportions of their income that are used to provide support to the church schools that they serve.”

Oxford diocese, which had “very high” land values, would see a disproportionate loss, she said. “Likewise, [with] the absence of any clauses designed to pick up S554 orders [this creates new trusts for the property when church schools close] and make them applicable to academies (this is part of 1996 Education Act so only applies to maintained schools) — there is a big, missed opportunity here to sustain the previous position.”

LBMW warns: “DBEs will have little or no ability to protect the site trusts and may come to be faced with the choice of either agreeing the secularisation of individual trusts or facing their destruction, including reversion of sites where applicable. Hence the specific charitable status and character of church schools is in principle destroyed by this Bill, later sections notwithstanding.”

THE Bill also seeks to amend the Academies Act 2010 to permit local authorities to apply to the DfE to convert any of its maintained schools to academies within MATs, after consultation with the governing body or foundation which must be facilitated by the latter.

Ms Dellar said: “If they can set up their own MATs, there is a very significant risk those MATs will get preferential treatment. . . Indeed, the Government has announced that they will get preferential conversion funding. By definition, local authority MATs won’t be suitable for church schools; so that risks disadvantaging the Church’s stake.” The issue of conflict of interest has also been raised by Dr Croft.

In the White Paper, it is proposed that any school with two consecutive Ofsted reports of below “Good” must join a “strong” MAT. Strong MATs are said to be assessed by the quality of education, rate of improvement, effective governance and financial management, and teacher recruitment and retention.

The paper states: “Strong trusts will be solely accountable for school improvement, delivering a brilliant education for children — with churches and other faith groups continuing to offer a distinctive education through networks of trusts.”

The Government promises to offer financial support to dioceses to establish such trusts through a national funding formula. Providers of schools with religious characters will be able to open new schools, but only, the White Paper says, “once all schools are in trusts”. It also says: “In the future, no one organisation will have the right to run schools indefinitely without delivering excellent outcomes.”

Ms Dellar was highly sceptical of the proposals, warning that MAT trustees — “who must do right by the schools they are responsible for” — could be in breach of company or charity law if “they weakened a strong MAT by taking on schools that would draw finances and resources away from the existing ones. . .

“Government keeps banging on about ‘strong trusts’ — but if the definition of this does not include ‘ability to support and develop the Christian character of church schools’ but instead means ‘private donor puts a million a year in’, then Christian education and what it is called to do in schools is likely to be eroded.”

THE idea that no church schools could open until full academisation had happened has set off alarm bells.

Ms Dellar, whose MAT is among those with the most small rural academies, said: “The fundamental problem is that the Government can require schools to become academies, but they cannot force MATs to take on the schools. Though ODST is committed to serving these small rural schools where possible, it isn’t easy. There are a lot of financially unviable very small schools in our area, which serve their village communities, often very well, but are expensive and time-consuming to run.”

Each year, a MAT collects a proportion of each of its schools’ budgets, or general annual grants (GAG), to fund central services — known as “top-slicing”.

“The average top-slice for a MAT is five per cent,” Ms Dellar explains; “so a 50-pupil school would generate around £15,000 per annum. This wouldn’t pay for site licences and computer software, let alone a minimum of six visits by a member of the school improvement team, plus travel and other central costs — which makes small schools a poor business decision.

“I imagine a number will close. They are much more likely than average to be C of E schools.”

The C of E is the largest provider of schools in rural areas — more than half of the 4632 church-run schools in the country — most of which have yet to convert to academies and many of which are significantly underfunded by struggling local authorities. Lack of transport, amenities, and housing also makes recruiting and retaining teachers, governors, and trustees more difficult.

This struggle may be exacerbated if “strong” trusts begin to dominate with fewer but more professionalised trustees.

Ms Dellar warns: “There is a risk that strong MATs will mean large ones with big budgets and lots of large secondary schools that can effectively divert money to smaller, weaker schools, without affecting the MAT’s financial viability overall.

“But such MATs are more likely to be centralised — because they are large — and so individual flexibility and tailoring of the curriculum to individual needs may be put at risk. This might actually reduce parental choice, not increase it, if all the schools in a MAT in a local area teach an identical curriculum.”

The Education Office briefing paper is confident, none the less, that existing church schools will find a home in church-majority MATs: “The expectation is that church schools will join church MATs, which have the appropriate articles of association to best safeguard the distinctive character and ethos of the school.” It maintains that a secular MAT would be considered “Only in rare and exceptional circumstances”.

MUCH is made by the Education Office of consultation with the Secretary of State. LBMW argues that this is no substitute for legal protection. In Ely, Mr Read welcomed the collaborative approach to improving the education system outlined in the White Paper. He was anxious, however, that national forces would override the need to make local provision. “Context is everything,” he said.

In Ely, they had generally found that the MAT system, when well organised and correctly structured, had given small and vulnerable schools the economy of scale needed to survive — including schools in the Fenland areas.

Diocese of ElyAndrew Read with pupils at Brington Church of England Primary School

“Our smallest school has 26 pupils,” he said. “It got a ‘Good’ from its last Ofsted. That school would not be viable if it were not in a MAT.” This worked because the school was an integral part of the community. “We are not keen on MAT for MAT’s sake.”

The Association of Anglican Directors of Education, he said, wanted to ensure that “oversight governance of dioceses on Christian distinctiveness is reinforced and must be protected. . . However, none of us have an entitlement to run poor schools.”

Church schools should protect themselves, he suggested, by being “independently minded” with a good understanding of their needs and their diocese. “Schools will lose a sense of autonomy and localism if people are not proactive in thinking about what kind of structure is going to best support them in the future. Otherwise, people will end up with a ‘done to’ approach and risk being in a structure not of their choosing, which would happen anyway if they struggled with Ofsted. . . The MAT structure is built to enable local contextualisation.”

Currently, this hung on the Memorandum of Understanding, a formal (but non-statutory) agreement between the DfE and all dioceses through the national Church. This included articles and a funding agreement to ensure that the inherited governance position of any VA or VC school is carried forward and reflected in the new MAT structure. There is no mention of the Memorandum of Understanding in the Schools Bill, although the Education Office is confident that the Memorandum, as “published policy . . . will be expected to be followed unless there are good reasons not to do so.”

It goes on: “It is anticipated that the Memorandum of Understanding will be updated once the Bill has completed the parliamentary process.”

Much now depends on the Government’s openness to negotiation over the details of the Bill. Mr Read said: “At this stage, it is important to see any omissions or confusions in the context of an initial draft that was written to accommodate the national needs of a wide range of school contexts and type. We should value and engage positively in the formal process of considering the content in light of our own needs.”

He was “cautiously confident” that any concerns would be heard when voiced through the national Church. “The detail matters, and as always kindness, rigour, and candour will be the order of the day.”

Read Howard Dellar’s article on the Schools Bill here

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