Opinion

Trustees beware: know your legal duties!

Leora Cruddas
February 6, 2018

If there is a single part of the academy system that needs our urgent attention, it is trusteeship, argues Leora Cruddas

There is still much that is misunderstood about the differences between governing a local authority-maintained school, governing a single academy trust and governing a multi-academy trust.

At its most extreme, this lack of understanding has led to massive scale failures like the recent collapse of the Wakefield City Academies Trust. Ultimately, a breakdown in governance is a breakdown of the trust we hold with children and young people.

The governing bodies of maintained schools do not have the same legal and financial responsibilities as those at a single academy or multi-academy trust. It is crucial that this is well understood.

Governors are all responsible for setting a strategic direction for the school, creating robust accountability and ensuring financial probity. That’s where it ends at maintained schools, but trusts have more on their plates.

In addition to their duties as a governor, academy trustees are directors under company law and trustees under charity law. Trustees must ensure compliance with the trust’s charitable objects, and with company and charity law. They must also comply with the trust’s funding agreement with the secretary of state.

Trusts do not have the weight of the local authority behind them if something goes wrong

This means that they have legal responsibilities that governors of maintained schools do not. For example, because a trust is its own legal entity, separate from the local authority, trustees are accountable in law for the contracts they let, for health and safety, for financial management and solvency.

In fact, all academy trusts are required to prepare an annual report and accounts, which are publicly filed. Trusts do not have the weight of the local authority behind them if something goes wrong. In fact, the academy or multi-academy trust is directly accountable to parliament.

And unlike the governing board of a maintained school, the trust board is the employer of staff and the holder of land titles, whereas for maintained schools, the local authority is usually the employer.

The level of responsibility a trustee enjoys is therefore significantly greater than that of a governor at a maintained school, and so the knowledge and skills trust boards require to lead their organisation is correspondingly greater.

This becomes even more complicated for multi-academy trusts, where the trustees are leading complex organisations with a number of schools. The level of knowledge, skill and experience is therefore greater even than the requirements on a single academy trust.

It is perhaps a bit passé to mention WCAT, but it exemplifies both a failure of governance, and why it is so important that we get governance right. There are of course many other examples.

A report by WCAT’s interim chief executive Chris Pickering, who was hired last May to try to help the ailing trust, pointed to many failures of governance, notably a culture of secrecy and a lack of transparency, duplicated functions and poor financial oversight.

This failure of governance translated into the trust’s inability to support its own schools. Leaders and teachers at individual schools in the trust continue to do the job of educating children and young people; they were failed by those at the top.

Nelson Mandela said “there can be no keener revelation of a society’s soul than the way in which it treats its children”. When we accept the role of governor and trustee, we assume the mantle of responsibility for the future chances of our children and young people.

When we act irresponsibly or worse, negligently, we fail children. This ultimately, is why we must take governance seriously.

Leora Cruddas is chief executive of Freedom and Autonomy for Schools – National Association (FASNA).

FASNA is one of the organisations in receipt of a DfE contract to provide Governance Leadership Programmes.