Who do you have to consult when making the decision to convert to an academy – who needs to be involved and at what stage of the process?

Jessica says: The question is asking about voluntary conversion. Involuntary, or forced conversions, have different procedures, which are not discussed here.

First steps towards conversion

The recommended first step for voluntary conversion of a school to an academy is to fill in a “registration of interest” online form with the Department for Education (DfE). The DfE will then allocate a project lead to provide support and guidance to the school throughout the process.

Once the school’s governors have passed a resolution in favour of academy conversion, a formal application can be submitted to the DfE. If it is approved by the Secretary of State, then an academy order will be issued which provides the school with the legal right to implement the conversion. It is important to note that the school will be required to provide evidence that a consultation has taken place as part of the application process to become an academy.

Who do you need to consult? 

Section 5 of the Academies Act 2010 (the ‘Act’) requires the school’s governing body to consult with “such persons as they think appropriate” about whether the school should convert into an academy.

The process is generally flexible and schools have broad discretion as to how it is carried out. However, a formal consultation process is recommended, which provides key stakeholders with all necessary information as to why conversion is being proposed and the changes that will occur due to conversion. There is no statutory requirement to consult with any specific party, however the government recommends that this should include staff members, parents and carers and involve pupils and the wider community.

The school may also consider the following to be relevant:

– Local authority

– Community groups

– Any feeder primary school and nurseries

– Further and higher education institutions

– Local schools and education providers

– Multi academy trust (MAT) (if the school is joining a MAT, the DfE will need confirmation the MAT is happy for the school to join them and will require evidence of their consent later in the conversion process)

– Trust/Foundation (evidence of consent will be required later in the process)

– Schools with a religious designation must consult the diocesan board/religious authority (evidence of consent will be required later in the process)

– Children’s Centre/SEN unit

– Education unions

Timing

Consultation may take place before an application is made for academy status but must be completed before a funding agreement is entered into with the Secretary of State. The consultation is about listening to the views of interested parties and ensuring their questions are answered. There is no specific time for how long consultation should continue for, but this should be long enough to allow interested groups to have a fair chance to respond and ask questions.

In order for the consultation to be meaningful, it would be prudent for the consultation to take place before the governors decide whether or not to convert, as the feedback from the consultation should inform the governor’s decision making. In light of this, it is recommended that the consultation takes place before an application for academy status is made to the DfE.

Transfer of Undertakings (Protection of Employment) or TUPE

If an academy order is granted, the staff will transfer to the employment of the academy trust upon conversion under TUPE.  There will need to be a separate consultation process for this part of the process, which will take place after the governing body has formally approved the decision to convert to academy status.

Jessica Cumming is a solicitor in the education team at law firm Gordons.

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