Last reviewed 23 April 2012
Barbara Roberts looks at the legal issues involved in converting to an academy and the importance of choosing the right legal advisor to help guide you through the process.
A complicated process
The decision to convert to academy status is something about which school managers and governors will have thought long and hard. During those considerations, it will have been clear that the path to conversion is not always a simple one: a whole host of complicated legal issues could block progress and, in turn, create a distraction from the core roles and objectives within the school. These legal issues will need to be dealt with before, during and after the conversion process. Choosing the right legal advisor to guide you through is, therefore, essential.
What is a legal advisor’s role in the conversion process?
Whichever legal firm you choose to help, you will need to cover a number of aspects of the conversion process. These could include the following.
Looking at the school’s current status and constitution and then advising on the appropriate conversion route.
Helping and guiding the school through the conversion process from start to finish.
Preparing all the necessary documentation: transfer agreements (including all land and property documentation), Articles of Association, funding agreements and admission policies.
Assisting and advising on all issues around employment in general and the Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 2006 in particular.
Liaising with the Department for Education and the Secretary of State throughout the process.
Providing assistance and advice on pensions and trusts issues.
Assisting with funding agreements, Disclosure and Barring Service matters and academy registrations (eg, with exam boards).
Providing ongoing advice following conversion on a wide range of legal issues including compliance with the Companies Act 2006 and the Charities Act 2006.
Legal firms that are seeking consideration to supply legal services may also offer the academy a range of services to be used when the conversion has taken place. These may cover the following.
Cost-effective company secretarial services (the academy is a company limited by guarantee).
School clerking services and academy governance on roles and responsibilities (good governance in the academy will be essential).
Special educational needs, inclusion, admissions (including appeals), and advice on complying with the Equality Act 2010 (all previously provided through the local authority).
Compliance and statutory regulations (the academy will have new reporting requirements).
Commercial disputes and contracts, data protection and disclosure.
Different sources of legal advice
There are a number of options for finding the legal advice needed. Firms of legal advisors can be researched and approached, and — if necessary — asked to submit a tender for the work. The tender process can be lengthy, as it involves the production of tender documents, initial submissions, time for receipt and assessment, an interview process for shortlisted firms, and the process of appointment.
Alternatively, the academy may have a sponsor that has its own legal department or access to legal services from its own long-term provider.
In some cases, a school may not need to look for a legal advisor. It may have existing links with accountants and business advisors, who have provided long-term services into the education sector, and have developed a track record of supporting sponsors and schools in developing all forms of academies. Most of these accountancy firms have national offices which have previously provided services to academy sponsors from both educational and business backgrounds. In certain circumstances, the accountancy firm, acting as a consultant during the conversion process, will introduce a firm of legal advisors to the project. Funding is made available through the Department for Education which remunerates the consultant who, in turn, manages the relationship with the legal advisor.
Picking firms that can help
If you need to appoint a firm of legal advisors, a quick Internet search of law firms will soon indicate those that have experience in the provision of legal advice services for academies. Many will make reference to their experience in all of the main areas including the setting up of the academy trust, charity issues, property issues, asset transfer, workforce and TUPE issues. Many will show that they understand that the legal documentation for establishing an academy involves a web of relationships with responsibilities and accountabilities that need to be properly understood.
These, of course, need to be shaped to allow the creation of an excellent learning environment both in the physical school buildings and facilities, and in the organisation of the governance and management of a successful academy. Most legal firms working within the academy sector will highlight that:
they have a team of specialist education lawyers with years of experience advising the education sector
they are currently working with a number of foundation, local authority and special schools, providing specialist advice and guidance on the process of converting to academy status
as some of their academy conversion team also act as governors for various schools, they can also advise on a practical level and tailor advice to specific requirements.
Some firms may draw attention to their ability to win awards in a wide range of areas on the quality of their customer service delivery.Most firms will, of course, seek to encourage new clients by drawing attention to their many existing satisfied academy clients.
So the ideal marketing note or offering from a firm might read as follows.
Our breadth and depth of academy experience means we have the legal specialists to deal with every legal challenge that you might face.
We will take the problems away from you in such areas as employment, transferring land and buildings, the funding agreement, setting up the academy company and governance.
We do things quickly but thoroughly. We ensure that you convert on time and within budget.
With a fixed fee for the work involved, you will know exactly how much you will pay for the legal work involved in the conversion. The fee is highly competitive due to our familiarity with the issues that might arise and the efficient and effective solutions available within the firm to address them.
Working with your legal advisor
Once appointed, it will be the responsibility of the legal advisor to provide continuous legal support, not only in the drafting of legal documents but also in supplying briefings and information during pre-conversion, implementation and post-conversion.
The initial work by the legal advisor could well be to present to the sponsors or the converting school information on:
terminology and structure
rights and responsibilities under the academy framework
the main documents that will be produced
the timetable for the conversion.
It would also be sensible to have a note on the legal tasks that need to be completed before the proposed academy can be incorporated with Companies House as a company limited by guarantee, as this type of legal entity may not be known at the proposed academy. The academy will also need to know about the funding agreement, the role of the responsible officer, and developing excellence within a new governance structure.
Good communication needs to be established between the converting academy and the legal advisor. Here are some samples of feedback from satisfied customers, where the lines of communication worked well.
The support and advice we received were outstanding. Responses to questions were speedy and accurate.
The professional and determined approach to ensure everything was conducted and concluded to the highest standards says much for the high-quality ethos that runs in the organisation. The team was always ready to receive, and to rapidly respond to, calls or e-mails in a friendly and positive manner, no matter how simple the question may have been.
Our needs were looked after by a dedicated, friendly, accountable project manager, who drove the academy conversion project forward on our behalf and dealt promptly with any queries that we had.
The company secretary of the academy trust should be of high quality and able to work effectively with the legal advisor to ensure that they fulfil all the requirements of their terms of reference and service agreement in the growth and development of the academy.
Training new staff
The legal advisor appointed should also be able to provide training for new employees and governors and/or trustees in understanding the requirement of their new roles and the academy’s obligations. It is likely that new personnel, such as newly appointed academy trust directors and local governing body governors, will have become linked to the academy at various stages following the initial presentations. These training sessions could look again at the legal framework and governance structure, such as:
the Articles of Association
the master and supplementary funding agreements
the code of conduct
the respective responsibilities of Directors and Members as these sit within company and charity law
additional areas, including aspects of confidentiality, collective responsibility, the register of interests, avoiding conflicts of interest, review panels and appeals, exclusions and freedom of information considerations.
An ongoing relationship
Finally, the legal advisor should show to the academy that a long-term sustainable business relationship is being built, which will continue after the conversion process is completed. Ongoing legal advice should be offered on the issues surrounding running the academy, including those encountered as a result of the new status as a company and a charity. These might include: governance-related issues, fundraising, employment matters, contractual agreements, property and land-related issues.