Section 3. Constitution of Governing Bodies

Obsolete
This is Section 3 of the Guide to the Law, as published May 2012, and now superseded by the Governors’ Handbook.
Download this page as a Word doc: GttL 2012 Section 3 Constitution of Governing Bodies
Look at the other sections of the Guide to the Law (May 2012)
Check the GOV.UK website for the latest version of the Governors Handbook

 UPDATE STATUS 

This section reflects current legislation. The Education Act 2011 will introduce changes to the constitution of governing bodies, including federated governing bodies, and revisions to the school governance procedures regulations. These changes will come into force in September 2012.

 KEY POINTS

The aim of this section is to explain the way governing bodies are formed, as set out in the School Governance (Constitution) (England) Regulations 2007 – the “Constitution Regulations”. Guidance to the Constitution Regulations can be found on the DfE website.

1.       All governing bodies of community, community special, foundation (F) (including qualifying foundation schools, foundation schools with and foundation schools without a foundation), foundation special, voluntary aided (VA), voluntary controlled (VC) and maintained nursery schools (MNS) can adopt a model for the size and membership of their governing body that best suits their circumstances.

2.    The size of the governing body ranges from a minimum of 9 to a maximum of 20 people, except in VA schools and qualifying foundation schools where the minimum size of the governing body is to be 10 and 11 respectively. Within this range, each governing body can adopt the model of their choice, provided it complies with the guiding principles outlined in the following section. The only exceptions are:

• in primary schools, where the governing body can appoint one or two sponsor governors, and in secondary schools, where the governing body can appoint up to four sponsor governors. These governors do not count towards the maximum size;
• in a VA school or a qualifying foundation school, where the governing body appoints sponsor governors. In these cases the same number of foundation governors may be appointed to preserve their majority. The maximum size of a governing body at a VA and qualifying foundation primary school is 24 (20 plus two sponsor governors, plus two foundation governors to preserve the majority of two). The maximum size of a governing body at a VA and qualifying foundation secondary school is 28 (20 plus up to four sponsor governors, plus up to four foundation governors to preserve the majority of two).

THE GUIDING PRINCIPLES

3.       The guiding principles prescribe which categories of governor must be represented on the governing body and what the level of representation is for each of the categories. There are four compulsory stakeholder groups for community and community special schools as well as MNS and VA schools. Foundation and VC schools have five compulsory stakeholder groups. Sponsor governors form an optional group. The proportion of places on the governing body that must be reserved for the different categories is shown in the table in paragraph 24 (below).

PARENT GOVERNORS

4.       Parents (including carers) of registered pupils at the school are eligible to stand for election for parent governorship at the school. In the case of MNS, any parent (or carer) of a child who is making use of the service provided by the nursery is eligible to stand for election for parent governorship at the school. Parent governors are elected by other parents at the school. If insufficient parents stand for election, the governing body can appoint parent governors.

“Parent” is defined for the purposes of the Constitution Regulations as including “any individual who has or has had parental responsibility for, or cares or has cared for, a child or young person under the age of 18”. It includes a person who the child lives with and who looks after the child, irrespective of what their relationship is with the child. The reference in the definition must be to someone involved in the full-time care of the child on a settled basis.

5.       For community, community special and VC schools, and MNS, the Local Authority (LA) has the responsibility for arranging the elections, though it can delegate this to the head teacher. 

VA F

6.       For foundation, foundation special and VA schools, the governing body has the responsibility for arranging the elections, though the governing body can agree with the LA for it to make the arrangements (again, the LA can delegate to the head teacher).

7.       Schools must make every reasonable effort to fill parent governor vacancies through elections. If insufficient parents stand for election the governing body can appoint:

• a parent of a registered pupil at the school, or if that is not reasonably practicable;
• a parent of a former pupil at the school, or if that is not reasonably practicable;
• a parent of a child of, or under, compulsory school age.

This also applies to community special schools and foundation special schools, but for these schools the appointment criteria are:

• a parent of a registered pupil at the school, or if that is not reasonably practicable;
• a parent of a former pupil at the school, or if that is not reasonably practicable;
• a parent of a child of or under compulsory school age with special educational needs for which the school is approved, or if that is not reasonably practicable ;
• a parent with experience of educating a child with special educational needs.

8.       A person is disqualified from election or appointment as a parent governor of a school if they are an elected member of the LA, or if they work at the school for more than 500 hours in any consecutive 12-month period (at the time of election or appointment). If a serving parent governor subsequently starts to work at the school for more than 500 hours in a consecutive 12-month period, they would serve out their term of office.

            STAFF GOVERNORS

9.       Both teaching and support staff paid to work at the school are eligible for staff governorship. Staff governors are elected by the school staff and must be paid to work at the school – volunteers are ineligible. Any election that is contested must be held by ballot.

10.     At least one staff governor (in addition to the head teacher – see paragraph 11 below) must be a teacher, but if no teacher stands for election, a member of the support staff can be elected to take that place. If a governing body has three or more staff governor places, at least one staff governor must be a member of the support staff, but if no member of the support staff stands for election, a teacher can be elected to take that place.

11.     The head teacher is a member of the governing body by virtue of their office and counts in the member of the staff category. If the head teacher decides not to be a governor, he or she must inform the clerk of that decision in writing. The head teacher’s place remains reserved for him or her and cannot be taken by anyone else.

12.     School staff that are eligible for election as staff governors (i.e. who are paid to work at the school) are not eligible to serve as Local Education Authority (LEA) governors or community governors at their school. If they are paid to work at the school for more than 500 hours in any consecutive 12-month period they are not eligible for election or appointment as parent governors. However, staff can vote in parent governor elections if they are parents. They can also be governors at other schools. Their employment status will not affect their qualification for governorships in these categories at another school.

AUTHORITY (LEA) GOVERNORS

13.      Authority governors are appointed by the LA. LAs can appoint any eligible person as an authority governor. A person is disqualified from appointment as an authority governor if they are eligible to be a staff governor of the school.

COMMUNITY GOVERNORS

14.     Community governors are appointed by the governing body to represent community interests. Community governors can be people who live or work in the community served by the school, or people who do not work or live close to the school but are committed to the good governance and success of the school.

15.     In community special schools and foundation special schools, the governing body must appoint as one of the community governors a person (if any) nominated by one or more voluntary organisations designated by the LA. If the school is based in a hospital, the community governor must be nominated by one or more primary care trusts, the National Health Service (NHS) trust or NHS foundation trust.

16.     A person is disqualified from appointment as a community governor if he or she is eligible to be a staff governor at the school, or is an elected member of the LA to which the school belongs.

FOUNDATION AND PARTNERSHIP GOVERNORS

VAVCF

17.     Foundation governors are appointed by the school’s founding body, church or other organisation named in the school’s instrument of government. They may hold their governorship in an ex officio capacity if they are the holder of an office specified in the instrument of government, for example a parish priest. If the school has a religious character the foundation governors must preserve and develop this. They must also ensure compliance with the trust deed, if there is one. If there is more than one body that has the right to appoint foundation governors, the instrument of government specifies the bodies concerned and the basis on which appointments are made.

F

18.     If the school has no foundation or equivalent body, the foundation governors are replaced by partnership governors appointed by the governing body after a nomination process. The governing body must ask parents of registered pupils at the school, and others in the community it considers appropriate (for example, staff, community organisations and other local bodies), to provide nominations for partnership governors.

19.     Parents of registered pupils at the school, staff eligible to be staff governors, elected members of the LA and those employed by the LA in connection with education functions are not eligible to be partnership governors.

SPONSOR GOVERNORS

20.     Sponsor governors are appointed by the governing body. It is at the governing body’s discretion whether they choose to appoint sponsor governors or not. If the governing body wants to appoint one or more sponsor governors, it must seek nominations from the sponsor(s).

21.     The sponsor can be someone who gives substantial assistance to the school, financially or in kind, or who provides services to the school. The governing body can appoint a maximum of two persons as sponsor governors, or where the school is a secondary school, up to four sponsor governors.           

ASSOCIATE MEMBERS

22.     The governing body can appoint associate members to serve on one or more governing body committees and attend full governing body meetings. The definition of associate member is wide and pupils, school staff and people who want to contribute specifically on issues related to their area of expertise (for instance, finance) can be appointed as associate members.

23.     Associate members are appointed as members of any committees established by the governing body. They are appointed for a period of between one and four years and can be reappointed at the end of their term of office. Associate members are not governors and they are not recorded in the instrument of government.

PROPORTION OF GOVERNOR PLACES BY CATEGORY & TYPE OF SCHOOL

24.     This table shows the proportion of places that should be allocated to a governing body.

	Category of governor
Type of school	Parent	Staff	Authority	Community	Foundation/ Partnership
Community, community special, maintained nursery school	At least one­third	At least two, but no more than one­third, including the head teacher	One­fifth	At least one­fifth
Foundation, foundation special (without a foundation)	At least one­third	At least two, but no more than one­third, including the head teacher	At least one, but no more than one­fifth	At least one­tenth	At least two, but no more than one­quarter
Foundation, foundation special (with a foundation) but not qualifying foundation schools	At least one­third	At least two, but no more than one­third, including the head teacher	At least one, but no more than one­fifth	At least     one-tenth	At least two, but no more than 45%
Qualifying foundation schools	At least one, but enough to total at least one-third when counted with foundation governors who are eligible to be parent governors	At least two, but no more than one­third, including the head teacher	At least one, but no more than one­fifth	At least     one-tenth	They must outnumber the other governors by up to two
Voluntary aided	At least one, but enough to total at least one­third when counted with foundation governors who are eligible to be parent governors	At least two, but no more than one­third, including the head teacher	At least one, but no more than one­tenth		They must outnumber the other governors by two
Voluntary controlled	At least one-third	At least two, but no more than one­third, including the head teacher	At least one, but no more than one­fifth	At least     one-tenth	At least two, but no more than one­quarter

Proportions and percentages must be rounded up or down to the nearest whole number. Examples of constitutional models can be found in Annex A of the Statutory Guidance on the School Governance (Constitution) (England) Regulations 2007. 

TERM OF OFFICE

25.     The maximum term of office for all categories of governor is four years, but the governing body can decide to set a shorter term of office for one or more categories of governor. This does not apply to the head teacher or to any additional governors appointed by the LA or the Secretary of State for Education. If the term of office for a particular category of governor is to be shorter than four years, this has to be recorded in the instrument of government. The term of office cannot be shorter than one year and cannot be varied for individual governors. Any governor may, at any time, resign by giving written notice to the clerk.

REMOVAL FROM OFFICE

26.     The governing body may remove from office:

• community governors or partnership governors;
• any parent governor who has been appointed, but not an elected parent governor. (A parent governor is considered to be elected if he or she stood for election for parent governorship. Whether or not a ballot took place is not relevant to this issue);
• any sponsor governors. (It may also do so at the request of the nominating body);
• any associate member.

27.     Authority and foundation governors may be removed from office by the person who appointed them. The person who appointed them must give written notice to the clerk to the governing body, and the governor in question, of the governor’s removal.

N.B. The governing body may not remove any staff governors.

PROCEDURE FOR REMOVAL

28.     Reasons for proposed removal of any community governor, partnership governor, appointed parent governor or sponsor governor must be given by the governor(s) proposing the removal. The governor in question must be given the opportunity to make a statement in response before a vote is taken on a resolution to remove him or her.

29.     In the case of the removal of a community governor nominated by a voluntary organisation, primary care trust, NHS trust, NHS foundation trust, or sponsor governor proposed for removal at the request of the nominating body, the nominating body proposing the removal must inform the clerk to the governing body. The governor in question must also be notified in writing of the reasons for proposing his or her removal. The clerk to the governing body must give the reasons for the proposed removal to the governing body, and the governor proposed for removal must be given the opportunity to make a statement in response, before a vote is taken on a resolution to remove him or her.

VA VC F

30.     The same procedure applies to the removal of an ex officio foundation governor, except that it is the person requesting the removal of the ex officio foundation governor who must inform the clerk and the governor in question.

31.     A governing body’s decision to remove any community, partnership, sponsor or appointed parent governor must be confirmed at a second meeting not less than 14 days after the first meeting. At both meetings the removal of the governor in question must be specified as an item of business on the agenda.

VA VC F

32.     The removal of an ex officio foundation governor must follow the procedure outlined in the above paragraph.

INSTRUMENT OF GOVERNMENT

33.              The instrument of government is the document that records the name of the school and the constitution of its governing body. The governing body drafts the instrument and submits it to the LA. The LA must check if the draft instrument complies with the statutory requirements, including the relevant guiding principles for the constitution of governing bodies. If the instrument complies with the legal requirements, the LA will make the instrument. The governing body and LA can review and change the instrument at any time.

F

34.     Before the governing body submits the draft instrument to the LA, it has to be approved by the foundation governors and, where relevant, any trustees and/or the appropriate religious body.

35.     For community special schools and foundation special schools, the instrument should also record the name of the body that has the right to nominate a person for appointment as a community governor. 

SURPLUS GOVERNORS

36.     If on a reconstitution of the governing body there are more governors in a particular category than are recorded in the instrument of government, the governor(s) of that category may serve out their term of office. This does not apply to a change of school category. When a school changes category and there are more governors in any of the categories of governors than in the new instrument of government and that excess is not eliminated by governors resigning, the surplus governors must cease to hold office immediately. The governors who are to cease to hold office are to be determined on the basis of the shortest period of continuous service. Where there is equal seniority, removal will be determined by drawing lots. See the Schedules to the School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2007.

QUALIFICATIONS AND DISQUALIFICATIONS

37.     Schedule 6 of the Constitution Regulations covers the qualifications and disqualifications of governors.

38.     A governor must be aged 18 or over at the time of his or her election or appointment and cannot be a registered pupil at the school. A person cannot hold more than one governorship at the same school.

39.     A person is disqualified from holding or from continuing to hold office as a governor or associate member if he or she:

• fails to attend the governing body meetings – without the consent of the governing body – for a continuous period of six months, beginning with the date of the first meeting missed (not applicable to ex officio governors);
• · is subject to a bankruptcy restriction order, an interim bankruptcy restriction order, a debt relief order or an interim debt relief order;
• has had his or her estate sequestrated and the sequestration order has not been discharged, annulled or reduced;
• is subject to:

i) a disqualification order or disqualification undertaking under the Company Directors Disqualification Act 1986

ii) a disqualification order under Part 2 of the Companies (Northern Ireland) Order 1989

iii) a disqualification undertaking accepted under the Company Directors Disqualification (Northern Ireland) Order 2002

iv) an order made under Section 429(2)(b) of the Insolvency Act 1986 (failure to pay under a County Court administration order);

• has been removed from the office of charity trustee or trustee for a charity by the Charity Commissioners or High Court on grounds of any misconduct or mismanagement, or under Section 34 of the Charities and Trustees Investment (Scotland) Act 2005 from participating in the management or control of any body;
• is included in the list of people considered by the Secretary of State as unsuitable to work with children;
• is disqualified from working with children or subject to a direction under Section 142 of the Education Act 2002;
• is disqualified from registration for childminding or providing day care;
• is disqualified from registration under Part 3 of the Childcare Act 2006;
• has received a sentence of imprisonment (whether suspended or not) for a period of not less than three months (without the option of a fine) in the five years before becoming a governor or since becoming a governor;
• has received a prison sentence of two-and-a-half years or more in the 20 years before becoming a governor;
• has at any time received a prison sentence of five years or more;
• has been fined for causing a nuisance or disturbance on school premises during the five years prior to or since appointment or election as a governor;
• refuses to allow an application to the Criminal Records Bureau for a criminal records certificate. 

WHAT LEGISLATION DOES THIS REFER TO?

The Education Act 2002: Sections 19 and 20

The School Governance (Constitution) (England) Regulations 2007: SI 2007/957

The Education Act 1996: Section 576 (1), (3) and (4), read together with the Education Act 2002: Section 212(2), gives a definition of “parent” (see also the definition of parent in the Constitution Regulations)

The School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2007: SI 2007/1289

The School Governance (England) (Amendment) Regulations 2012: SI 2012/421