To open a new school three things are needed: a proposer, permission, and capital funding, explains Simon Foulkes

The government announced this month that it “will develop a scheme to help create new voluntary-aided (VA) schools for faith and other providers to meet local demand, supported by capital funding.

The VA route already allows for schools to apply to open with up to 100-per-cent faith-based admissions. The Department will work with local authorities to create these schools where they are needed, subject to a 10-per-cent contribution from the provider to the capital costs”.

This looks very clear. But in practice very few proposals for new VA schools have been possible for some years because the law changed in 2011 to create a presumption that new schools would normally be academies.

The legal background to making a proposal

The statutory routes for opening new VA schools are all in the Education and Inspections Act 2006, as amended by the Education Act in 2011, and are as follows.

First, if an academy competition under Section 6A of the Act fails to generate an acceptable proposal, then a VA school could be proposed for consideration under Section 7 and might be accepted.

Secondly a new VA school may be proposed at any time under Section 11(1A), which reads: “Where any persons (“proposers”) propose to establish a new voluntary aided school in England, they may publish their proposals under this section.”

The question is, however, how do Sections 6A, 7 and 11(1A) fit together?

The question is, however, how do Sections 6A, 7 and 11(1A) fit together?

The only case law to date arose in 2012 in R v Richmond upon Thames London Borough 2012.

The Roman Catholic Diocese of Westminster had proposed new VA primary and secondary schools, and the local authority had agreed. The British Humanist Association objected that the requirement for a competition to be held under Section 6A prevented such an agreement. The judge reached two findings that help to clarify the interaction between Sections 6A, 7 and 11(1A).

First that “need” in 6A is a kind of technical term meaning something like a formal decision on the part of a local authority that there was a current, quantifiable requirement for further school places.

This was not the same as merely thinking “that there may be a need for a new school at some point in the future (but not yet)”. It also contrasted with a more general power of a local authority to foster the establishment of a new school if “in a wider and more general sense it thinks it may be beneficial to do so”.

Second, proposals under Section 11(1A) were consequently not trumped by Section 6A: “Under the Act the local authority (irrespective of whether they had formed the view that a new school was needed) had to consider and if so minded approve the S11 proposals.”

A more generous context for getting permission?

We presume that this is the context within which the DfE intends the concept of “local demand” to allow for the promotion of new VA schools. The law has not in fact changed! So, a new VA school can be promoted:

• under Section 7 if an academy competition under Section 6A has failed;

• under Section 11(1A) in parallel with an academy competition or at any time if local demand for the relevant type of school could be shown, even if a Section 6A competition was not triggered by a real shortage of places.

The promotion of a new VA school therefore becomes an option to be considered by a local authority not only in the context of Sections 6A and 7 competitions, but at any time. One might assume the context will be more favourable to such proposals than the system has seemed since 2011.

Therefore, you can propose (you always could) and you might get permission. The third step, funding, is all that remains.

Clearly it is the intention of the announcement that the government will make some capital available for new VA provision on the standard 90-per-cent basis.

It is for the proposer to find the remaining 10 per cent. The route for a new VA school has not changed, but the financial means to do so have been increased. I would expect the Roman Catholic Dioceses, which have been campaigning for a way to propose new schools, to be very pleased indeed.

What is a VA school?

The maintained system before academies generally recognised either state or voluntary provision. Although there were possible variations, in practice this boiled down to local authorities on one hand, and religious bodies on the other.

Voluntary schools belonged in two categories: aided schools, where the voluntary provider controlled the school through the appointment of governors and the state aided the governors by meeting all the running costs and 90 per cent of the capital costs; and controlled schools, where the state controlled and maintained the school but the voluntary provider appointed up to 25 per cent of the governors.

The vast majority of voluntary controlled schools were Church of England schools built on land owned by trusts requiring a church school to be provided. About three quarters of CofE schools fall into this category, the remainder are voluntary aided. All Roman Catholic schools are VA.

Simon Foulkes is an education consultant at Lee Bolton Monier-Williams