This is Section 20 of the Guide to the Law, as published May 2012.
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KEY POINTS
The Education and Inspections Act 2006 put in place the statutory framework for schools to become Trust schools. Trust schools are not a new or different category of school, but are foundation schools supported by a charitable foundation or Trust. The aim is to bring in the experience, energy and expertise from partners to strengthen the leadership and governance of schools, and to raise standards and strengthen collaboration.
This section gives a brief description of the statutory processes underpinning Trust schools and the duties and requirements of those Trusts. However, it is not a comprehensive guide. Governors of community and voluntary schools must have regard to statutory guidance.
TRUST SCHOOLS
1. A Trust school is defined as a foundation school with a foundation. Foundations are defined in Section 21 of the School Standards and Framework Act 1998. The statutory purpose of a foundation is to hold land on trust for one or more schools. It may also appoint foundation governors to those schools where the school’s instrument of government so provides. A Trust school operates within the same frameworks as other maintained schools. The Local Authority (LA) will fund the school on the same basis as all other LA schools and will retain its intervention powers if there are problems at the school.
2. Trusts can involve one or more partners and can support an individual school or groups of two or more schools. Acquiring a Trust is a way for schools to raise standards through strengthening collaboration and drawing on the expertise and energy of their partners to support their strategic leadership. It is for each school’s governing body to decide whether to adopt Trust status.
3. The Trust school retains the stakeholder model of other maintained schools involving parents, staff, community and LA governors and the governing body remains responsible for all major decisions about the school and its future. Trust schools benefit from a long-term relationship with external partners and their involvement in the school’s governance and leadership. The skills and experience of Trust-appointed governors can strengthen the whole governing body and make a contribution to the school’s ethos.
ACQUISITION OF A TRUST/ACQUIRING A MAJORITY OF FOUNDATION GOVERNORS
4. Following the introduction of the Education and Inspections Act 2006 schools could become Trust schools by acquiring a Trust. Having completed the necessary statutory process, a governing body in its instrument of government may allow for the Trust to appoint a majority of governors to the governing body (otherwise the Trust will appoint a minority of the governing body).
5. Governing bodies of existing foundation schools that wish to acquire a Trust, or provide for their Trust to appoint a majority of the governing body, must follow a statutory process outlined below. The governing bodies of other types of school will also need to publish proposals to change category to foundation but these statutory processes may all be run concurrently.
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6. Although it is legally possible for any category of school to publish proposals to become a foundation school with a Trust under the 2006 Act, there are practical difficulties in the case of schools which already have a Trust, such as voluntary schools (and some foundation schools). A school may not have more than one Trust, so such a school would have to divest itself of its existing Trust (or the existing Trust would have to re-configure itself) to meet the requirements of the Act. The consent of the existing trustees of the school and whoever appoints the foundation governors would need to be secured before the governing body could publish the proposals. In addition, if the existing Trust continued in existence it would probably continue to own the land, and unless it was willing to make this available to the new Trust (and its Trust deed allowed it to do so), it would not be possible for the school to continue on that site.
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7. Even if it would not be possible (or desirable) for a school with an existing Trust to acquire a Trust under the 2006 Act, such schools could become involved in the Trusts of other schools, if all the parties were in agreement, through representation on that Trust. No school can acquire, lose or change its religious character through the acquisition of a Trust or through a change of category. A voluntary school which has a religious character (“faith” schools) would retain this character as a Trust school.
The statutory process
8. The process by which a governing body may acquire a Trust is given below.
i) The governing body considers the acquisition of a Trust, and/or the acquisition of a foundation majority; initiation of statutory process.
ii) The governing body undertakes a period of statutory consultation on the plans.
iii) The governing body publishes proposals (having obtained consent where required).
iv) Statutory four-week period for representations (including opportunity for the LA to refer proposals to the Schools Adjudicator).
v) Proposals are determined by the decision-maker (usually the governing body; the Adjudicator if the LA has referred proposals during the period for representations).
vi) Implementation.
9. The School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2007 specify both the information to be contained in proposals and the procedures for publishing proposals. The governing body must comply with the Regulations and must have regard to statutory guidance issued by the Secretary of State for Education.
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10. The governing bodies of voluntary aided and voluntary controlled schools, where the school already has a foundation, will require the consent of trustees or whoever appoints foundation governors before publishing proposals to change category to foundation. Foundation schools which acquired foundations before 25 May 2007 will require the consent of their existing trustees, or whoever appoints foundation governors, before publishing proposals to allow the Trust (foundation) to appoint a majority of the governing body.
11. LAs may, having regard to statutory guidance issued by the Secretary of State, refer proposals to acquire a Trust or allow a Trust to appoint a majority of governors to the Schools Adjudicator for decision. Regulations provide that LAs may refer proposals to the Adjudicator if they consider that:
- consultation has been inadequate, i.e. the governing body has failed to meet the requirements set out in the regulations or has failed to have regard to the relevant guidance; or
- the governing body has failed to have regard to responses to the consultation; or
- the Trust will have a negative impact on standards.
12. Whether the proposals are determined by the governing body or the Schools Adjudicator, the decision maker must have regard to statutory guidance issued by the Secretary of State.
13. Governing bodies are under a duty to implement proposals that they have approved, or that have been approved by the Schools Adjudicator (though modifications that do not constitute a significant change may be made). However, if circumstances change and it is difficult, or is no longer appropriate, to carry out approved proposals, governing bodies can publish new proposals which, if approved, would remove the duty to carry out the original proposals.
14. Trust schools which have a majority of governors appointed by the Trust must establish a Parent Council in accordance with the School Governance (Parent Councils) (England) Regulations 2007. (See section 21, Parent Councils.)
TRUSTS, LEGAL REQUIREMENTS
15. Legislation makes a number of requirements as to the form and function of Trusts and foundations. Trusts must be incorporated either as:
- a company registered under the Companies Act 1985 as a company limited by shares or by guarantee; or
- a body incorporated by Royal Charter.
16. All Trusts must:
- be charitable;
- have exclusively charitable objects, including the particular charitable object of advancing the education of all pupils at the school(s) for which the Trust acts as foundation;
- have aims which are, demonstrably, for the public benefit; and
- promote community cohesion.
17. Certain categories of persons are disqualified from being trustees under the School Organisation (Requirements as to Foundations) (England) Regulations2007. This includes a person who has not obtained a criminal records certificate under Section 113A of the Police Act 1997 – this certificate may only be obtained from the Criminal Records Bureau.
18. An individual subject to an Individual Voluntary Arrangement (IVA) is also precluded from being a trustee under Section 72(1) of the Charities Act 1993. Under this legislation, disqualification applies to those who:
- have been convicted of any offence involving deception or dishonesty; or
- are undischarged bankrupts; or
- have made compositions or arrangements with their creditors from which they have not been discharged; or
- have at any time been removed by the Charity Commissioners or a Court from being a trustee because of misconduct or mismanagement; or
- are disqualified from being company directors; or
- are subject to a disqualification order or disqualification undertaking.
For further details go to the Charity Commission’s website.
19. The Secretary of State has the power to remove and replace individual trustees in certain prescribed circumstances.
REMOVAL OF A TRUST/REDUCTION IN THE NUMBER OF FOUNDATION GOVERNORS
20. Though a relationship with a Trust is designed to be lasting, a governing body of a school may remove the Trust or alter the school’s instrument of government so that the Trust no longer appoints the majority of governors where they believe this would be in the best interests of the school. This applies only to Trust schools that have been established or have acquired their Trust under the Education and Inspections Act 2006.
The process
21. The removal of a Trust or reduction in a Trust majority is a statutory process similar to that of Trust acquisition (publication of proposals, representations and decision by the governing body). The School Organisation (Removal of Foundation, Reduction in Number of Foundation Governors and Ability of Foundations to Pay Debts) (England) Regulations 2007 specify both the information to be contained in proposals and the procedures for publishing proposals.
22. The governing body may at any time decide to publish proposals to remove the Trust or move to a minority of foundation governors, except in the case of a majority foundation governance model where at least a third of the governors initiate the process. In these circumstances, the governing body must consult in the area before publishing their proposals.
23. In the case of a majority foundation governing body, the governing body is not obliged to publish proposals to remove the Trust, or reduce the number of governors appointed by the Trust, in response to the request from at least a third of governors:
- at any time within five years beginning with the date of implementation of the most recent proposals for:
i. the establishment of the school
ii. a change of category to foundation or foundation special school
iii. the acquisition of a Trust
iv. the acquisition of a majority of governors appointed by the Trust.
or
- at any time within five years after the rejection of proposals, published by the governing body in response to a request by a minority of governors, to remove the Trust or reduce the number of governors appointed by the Trust.
24. There are different arrangements for the decision making, depending on how the process is triggered.
If the majority of governors voted to publish proposals, then they may be determined by a majority vote of those governors present and voting. If the governing body was required to publish proposals by a minority (of one third or more) of the governors, then, unless more than two thirds of the governors vote in favour of retaining the Trust/Trust majority, the proposals will be approved and the Trust/Trust majority will be removed.
25. Proposals to remove the Trust or to reduce the number of foundation governors are always determined by the governing body. There is a period for representations during which any person may object to the proposals (six weeks from the date of their publication). However, unlike the process to acquire a Trust, there is no power of referral to the Schools Adjudicator.
26. When a Trust is removed, the school becomes a foundation school without a foundation.
WHAT LEGISLATION DOES THIS REFER TO?
The Education and Inspections Act 2006 Sections 18–22; 24–27; 33–34; and Schedule 2
The School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2007: SI2007/1289
The School Organisation (Requirements as to Foundations) (England) Regulations 2007: SI 2007/1287
The School Organisation (Foundation Special Schools) (Application of Provisions Relating to Foundations) (England) Regulations 2007: SI 2007/1329
The School Organisation (Removal of Foundation, Reduction in Number of Foundation Governors and Ability of Foundations to Pay Debts) (England) Regulations 2007: SI 2007/3475
The School Governance (Parent Councils) (England) Regulations 2007: SI 2007/1330
