Russell Holland
Posted on 14 Jul 2016

Conversion and consultation

If you are a Head Teacher or Governor, then when you start thinking about converting, you may feel like you are being exposed to a whole new world of company law, charity law and the legal process of consultation. 

"Consultation" can sound like a complex and daunting process.  This can feel even more daunting when lawyers start to warn you about the risks of getting it wrong and the risks of a legal challenge.  While it is important to get consultation right, the process should be about making the right decision for your school and giving everyone the chance to have their say.  This is important because the goal is to make the right decision, not just avoid a legal challenge.  If carried out correctly, a good consultation will enable you to do both.  This does not mean that everyone will necessarily agree on what the right solution is, but it does mean you can treat everyone fairly as part of the process.  That's really what this is about.

Now for the legal part.  For voluntary conversions "before a maintained school in England is converted into an Academy, the school's governing body must consult such persons as they think appropriate about whether the conversion should take place."  So who are these "such persons" as the Governors "think appropriate"?  And how do you "consult" them?  Well, the Government has declined to tell you exactly what to do which means there is no one single right answer.  However, there are a few wrong ones, which is what lawyers can help you avoid.  In terms of when you do it, that's up to you too because consultation "may be carried out before or after an Academy order, or an application for an Academy order"

A quick red flag though "the governing body of a foundation or voluntary school that has a foundation must consult the foundation before making an application" and an application can only be made with the consent of the trustees of the school and the person who appointed the foundation governors.

So, we know why we have to consult, but who, when and how is largely up to you.  When doing a consultation some general principles apply and a Judge has summarised those principles as follows:

"First, that the consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third, that adequate time must be given for consideration and response, and finally, fourth that the product of consultation must be conscientiously taken into account in finalising any statutory proposals."  

This means you have to give people a chance to have an opportunity to have an informed say and consider what they say with an open mind.  So in terms of who to consult, clearly we need to think about the current (and prospective) students and their parents/carers.  Current (and prospective) staff.  Clearly the Governors are going to be important as well as the wider community.  If you are part of a federation you will need to think about the other schools in the federation too.  In terms of when, given the general guidance, the earlier people have a chance to have their say the more input they can have.  How to consult?  This could include writing to relevant parties, holding public meetings and a specific governor meeting will also be required.   Finally there is the how long?  There is no specific guidance but keeping in mind other Government guidance I would suggest 6-8 weeks to be a reasonable period of time.

While consultation about the decision to convert is required, it is important to keep in mind that there are separate rules around consultation when staff transfer from the school to being employees of a Trust.  This is a separate process but the same general principles will apply.

So while consultation can sound daunting, knowing and understanding the legal principles can help you to feel empowered about following a process which will help you involve everyone in making the right decision for your school and avoiding a legal challenge.

For more information please contact Russell Holland, Barrister in the Education team on russell.holland@michelmores.com or 01179 069323