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Academies and DfE statutory guidance

Lexis Public Sector 146x219Are academies legally obliged to comply with Department of Education statutory guidance? If so, what is the source of that obligation? LexisPSL Local Government reports.

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What is the legal status of an academy?

Academies Act 2010, s 1A

Academy schools are defined in section 1A of the Academies Act 2010 (AcA 2010). Academy schools are technically defined as independent schools, but this independence is from their local authority, not from the state. An academy school's funding comes from the Secretary of State and is regulated by a funding agreement negotiated with the Department for Education (DfE) or the Education Funding Agency. Academy schools can be special academies if their pupil intake consists entirely of children with statements of special educational needs.AcA 2010, ss 1C, 4(1C), 1B, 4(1B)Education Act 1996, s 4(1C)

There are also alternative provision academies, defined in AcA 2010, s 1C. They are 'schools' (see section 4(1C) of the Education Act 1996 (EA 1996)) and are roughly equivalent to the maintained-sector pupil referral units. The third category of academy is the 16 to 19 academy, defined in AcA 2010, s 1B and excluded from the definition of a 'school' by EA 1996, s 4(1B). Note that an academy school may have a sixth form that teaches 16 to 19-year-olds, but that does not make it a 16 to 19 academy. AcA 2010, s 15EA 1996, s 482Education Act 2002, s 68

City academies, city technology colleges and city colleges for the technology of the arts will almost all change into AcA 2010 academies under the transitional provisions in AcA 2010, s 15. Their EA 1996 academy agreements will be treated as AcA 2010 academy arrangements. EA 1996 city technology colleges and city colleges for the technology of the arts may also turn into AcA 2010 academies if they so agree. If they don’t agree they will keep their old labels and carry on as before, notwithstanding the repeal of most of EA 1996, s 482 and section 68 of the Education Act 2002 (EA 2002). See our Practice Note: Introduction to academy schools in particular the section Three types of academy.

See our Practice Note: Funding at an academy or free school for more information.

What is the legal relationship between an academy and the Department of Education?

EA 1996

The following sections of EA 1996 (including, for the avoidance of doubt, any secondary legislation made further to those provisions), which are mostly financial, are deemed to apply to Free Schools and Academies with the modifications set out in each funding agreement:

  • obligation to enter pupils for public examinations
  • charges
  • regulations about information regarding charges and school hours
  • voluntary contributions
  • recovery of sums as civil debt
  • interpretation regarding charges

Their deemed application is contractual and not directly as statutory law.

This is also reflected in: 10 facts you need to know about academies found on gov.uk which states that:

‘The Education Funding Agency ensures compliance with a funding agreement to make sure that spend is securing better outcomes for pupils. Unlike local-authority schools, academies are regulated charities—so they prepare annual financial statements that are fully audited by an independent external auditor. Academy schools are all charities held to account through a contract with government and bound by both company and charity law. That contract enshrines their freedom, and keeps them accountable for their results.

And

The Education Funding Agency ensures compliance with a funding agreement to make sure that spend is securing better outcomes for pupils. Unlike local-authority schools, academies are regulated charities—so they prepare annual financial statements that are fully audited by an independent external auditor. Academy schools are all charities held to account through a contract with government and bound by both company and charity law. That contract enshrines their freedom, and keeps them accountable for their results.’

What is the legal effect of statutory guidance?

EA 1996, ss 403, 405

The Mainstream academy and free school: supplemental funding agreement states that in relation to teachers and staff the Academy Trust may, in accordance with any relevant Guidance, employ anyone it believes is suitably qualified or is otherwise eligible to plan and prepare lessons and courses for pupils, teach pupils, and assess and report on pupils’ development, progress and attainment (2.A).

As well as this, any academy trust must have regard to any guidance, further to EA 1996 s 403, on sex and relationship education to ensure that children at the Academy are protected from inappropriate teaching materials and that they learn the nature of marriage and its importance for family life and for bringing up children. The Academy Trust must also have regard to the requirements in EA 1996, s 405, as if the Academy were a maintained school (2.7).

The agreement also states that academy trust must have regard to the relevant guidance issued to maintained schools in regard to pupils with disabilities (8.B).

Furthermore the Departmental advice for maintained schools, maintained nursery schools, academies, free schools, local authorities and dioceses on parental responsibility states that:

‘Requirements on academies differ slightly and are derived from the Education (Independent School Standards) Regulations 2014 (Part 6 f). Under these Regulations, academies must provide an annual written report of each registered pupil’s progress and attainment in the main subject areas taught, to the parents of that registered pupil (except that no report need be provided where the parent has agreed otherwise).’

The School Admissions Code 2014 was issued in December 2014 and came into force on 19 December 2014 and, unless otherwise stated, applies to admission arrangements determined in 2015 for admissions in school year 2016/2017. The Code applies statutorily to admissions to all maintained schools in England and by contract to all academy schools and free schools. See: The School Admissions Code 2012 and 2014: The Law of Education [1521].

Each statutory guidance issued by the Department of Education expressly states who should adhere to its requirements. Most statutory guidance expressly refers to academies and free schools except guidance relating to curriculum where academies not obliged to follow the national curriculum in its entirety save as above. See Practice Note: The curriculum at an academy or free school.

For further reading see: General powers of a local authority in education: The Law of Education [241], Teachers and other staff at an academy or free school: The Law of Education [2735] and Academies: Education Law and Practice.

This article was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.

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