Opinion: Legal

Legal: Four priorities to avoid a new ‘notice to improve’

New guidance could result in a formal notice to improve from the ESFA for failing to manage school estates. Here's how to mitigate that risk

New guidance could result in a formal notice to improve from the ESFA for failing to manage school estates. Here's how to mitigate that risk

1 Sep 2024, 5:00

For trust CEOs and board chairs, the publication of this year’s academy trust handbook has brought into sharp focus the importance of good management of the school estate. 

A new clause has been introduced which allows the ESFA to serve a Notice to Improve (NtI) to trustees and the executive for ‘failing to manage or maintain their estate strategically and effectively’.

Unpacking this responsibility, there are four areas which trust leaders should consider to mitigate this risk.

People

Having suitably qualified and experienced estates professionals working at a senior level within the trust is critical, ensuring that building condition issues are noted and addressed early, minimising risk and cost.

Further, employees with formal health and safety qualifications (IoSH, NEBOSH) will be able to identify hazards and risks and be equipped with the skills to mitigate these. Larger trusts will have the capacity to employ in-house expertise, while smaller trusts may rely on consultancy services to advise on and manage estates issues. Whoever is responsible, ensuring accountability is key.   

This new handbook requirement makes it essential for trusts to have or recruit a board member with estates expertise. This is so that – at a strategic level – they can ask the right questions, navigate complex legislation, analyse and understand estates and cost data, and give qualified advice to minimise corporate risk. 

Data

Trusts should hold up-to-date information about their estate, keeping this under continuous review so that the board and executive team have an accurate picture of condition and key risks. The latter include those which threaten business continuity (e.g. school closure), pose a risk to life or carry a significant cost.

Accurate data facilitates the early identification of any issues, allows for works to be correctly scoped and costed, and funding for capital works to be ringfenced. 

Baseline data that all trusts should hold includes:

  • building condition surveys conducted every three years by a RICS-qualified professional,
  • annual health and safety audits and fire risk assessments undertaken by an external health and safety advisor,
  • legionella risk assessments,
  • where applicable, updated asbestos registers.

However, procuring this information requires a significant investment of cost, as well as time to interpret. Therefore, it is critical that this documentation doesn’t sit in desk drawers or on servers. 

Rather, trust leaders should ensure that this data is used and managed in real time by estates teams to inform and improve health and safety and condition, and incorporated succinctly into board reports for review, interpretation and discussion by trustees.

Risk management

Estate condition and health and safety risks need to be captured in all risk reporting to the trust board and given the same (or higher) priority as education performance and standards risks. Boards hold the corporate responsibility for health and safety, and thus any risk to life sits with them.

Strategic planning

All trusts should have an estates strategy for the next five to ten years which meets the DfE’s Good estate management for schools (GEMS) guidance, and this strategy should include net capacity survey data.

Interpreting the latter alongside local school place planning information will help identify whether boards should be planning for PAN increases or reductions, developing new space to accommodate additional pupil intakes or considering new uses for areas of buildings which are not currently required, or developing mothballing plans for the short to medium term.     

Underpinning the estates strategy should be a financial plan which sets out how essential repairs and maintenance identified in condition surveys and other audits will be funded, and the timeframe within which issues will be addressed. 

Trusts in receipt of School Condition Allocation (SCA) will be able to project forward capital investment based on student forecasts; smaller trusts who are required to bid for Capital Improvement Funding (CIF) can plan ahead to ensure they have secured the supporting information required for a strong bid well in advance of the opening of the annual competitive funding round.  

All trusts should also have a sustainability strategy, which sets out how the board intends to reduce its estate’s carbon emissions through reducing reliance on fossil fuels. This strategy will incorporate information gleaned from building condition surveys and identify how improvements can be achieved through available funding streams (e.g. the Public Sector Decarbonisation Fund (PSDF) and loan options (e.g. Salix).

Focusing on these four areas will not only give trusts the capacity, knowledge and understanding to manage their estate in accordance with the ESFA’s requirements mitigating the risk of an NtI, but ensure prudent management of public resources, responsible stewardship of the environment, and, above all, keep staff and students safe in school.

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