Academisation moving back up the agenda
As restrictions are lifted further and schools are emerging from a tumultuous year of temporary closures and online learning, the Government has announced that academisation is back on its agenda.
At the Confederation of School Trusts Conference on 28 April 2021 the Secretary of State for Education, Gavin Williamson, announced the Government’s intention for every school to become an academy or part of a multi-academy trust (MAT) stating that “strong multi-academy trusts are the best structure to enable schools and teachers to deliver consistently good outcomes for all their pupils”. The Department for Education (DfE) also released its “Building Strong Academy Trusts” guidance on the same day. To facilitate academisation the Government is increasing the annual trust capacity fund and looking at how to make the process of joining a MAT as easy as possible.
The guidance provides that it is doubtful whether new single academy trusts (SAT) will be approved and new MATs are likely to be approved only if they are in areas of need and where standards are low. The past 12 months may have also highlighted to SATs how being part of a MAT could give the SAT access to increased support and resources, or that it has worked or begun working very closely with other schools in a MAT over the last 12 months and so joining that MAT is a logical next step. The guidance makes it clear that it is the responsibility of MATs to seek opportunities for growth, but MATs can also expect to see an increase in maintained schools and SATs approaching them to join their trusts, or even the DfE asking trusts to take on schools and SATs, for these reasons.
Due diligence remains a key part of the conversion or transfer process, even more so after the past year. When considering whether to take on a maintained school, SAT, MAT or partial MAT, the MAT will need to consider the location, type and phase of the school, as well as the educational, financial and capital risks to ensure it fully understands the obligations and liabilities which will transfer to it, and what benefits and challenges that growth will bring. Information obtained through the due diligence process may also impact the timescales of the conversion or transfer and will determine what third parties need to be involved in the process.
Currently, maintained schools begin the process of conversion by registering their interest in becoming an academy with the DfE and carrying out consultations with anyone who they think will have an interest in the school changing its status and converting to an academy. There are also separate considerations for schools with a religious character.
It is important to remember the process differs where an existing SAT or MAT is being transferred to a MAT. SATs wishing to join a MAT need to obtain the consent of the Secretary of State via the ESFA and/or the Regional Schools Commissioner (RSC) and this process is initiated by the MAT, rather than the SAT. The MAT is also encouraged to speak to the RSC about its growth. While there is no obligation for SATs or MATs to consult with their stakeholders, it is considered good practice to do so.
Once an Academy Order is made for the conversion of a maintained school, or RSC approval is received for the transfer of a SAT or MAT to an existing MAT, the process will involve transferring the land, buildings, assets, contracts, staff, obligations and liabilities of the maintained school, SAT or MAT to the new trust. The existing ‘empty’ SAT or MAT will then need to be dissolved. Where a MAT wishes to transfer only a proportion of its schools to a different MAT, this process might involve negotiations over which assets, obligations and liabilities are to transfer to the MAT.
The Secretary of State also announced a ‘try before you buy’ option, or Trust Partnership, whereby a maintained school temporarily receives support from a MAT for a period of 12 – 18 months as if it were a member of the trust, before deciding whether to join the trust permanently. Such partnerships have been available before, but the DfE has now published guidance and model agreements for this purpose. It is still a decision for the MAT however as to whether it wishes to offer such support without any commitment from the maintained school that it will join its trust.
Although each SAT or MAT’s situation will be different, the DfE guidance remains that any SAT or MAT considering a transfer, merger, growth or Trust Partnership should obtain legal advice as early as possible in that process.
We have extensive experience of advising on a range of academy conversions, transfers and mergers, including those involving schools of religious character. If you are a school considering conversion to an academy, a SAT considering forming or joining a MAT or a MAT that is looking to grow and would like to receive further advice, please do get in touch.
This update is for general purposes and guidance only and does not constitute legal or professional advice. You should seek legal advice before relying on its content. This update relates to the prevailing circumstances at the date of its original publication and may not have been updated to reflect subsequent developments. If you have general queries about our updates, please email: firstname.lastname@example.org