Academies Financial Handbook 2018 Published

Academies Financial Handbook 2018 Published

What you need to know about the changes

The new Academies Financial Handbook 2018 entered into force on 1 September 2018 and applies to transactions and operations after that date. The Funding Agreement with Department for Education requires academy trusts to comply with the terms of the Handbook. Failure to comply could trigger a Financial Management & Governance Review or a Financial Notice to Improve.

The key changes of emphasis in this edition are:

  • More emphasis on the critical role of the Board and the Chair of trustees in ensuring high standards of governance
  • More detailed requirements about regular and clear financial reporting to the Board
  • Greater scrutiny of transactions with related parties (i.e. trustees, senior managers, their family members or businesses in which they have an interest) and any subsidiary companies of the Trust.
  • Tightening the rules around setting of executive pay following recent media stories about excessive pay.

Turning to the specifics, the key changes are as follows:

  • 2.1.2 – If a Board meets less than 6 times a year, it must describe in its governance statement accompanying annual report and accounts how it maintained effective oversight of funds with fewer meetings.
  • 2.3.2 – The Trust must submit to ESFA a budget forecast return by 21 May and a 3 year budget forecast by 30 July. In setting the budget, the Trust board should have regard to latest DfE guidance including these key metrics to check:
  1. Staff pay as percentage of total expenditure
  2. Average teacher cost
  3. Pupil-to-teacher ratio (PTR)
  4. Class sizes
  5. Teacher contact ratio
  6. Proportion of budget spent on the leadership team
  7. 3 to 5 year budget projections
  8. Spend per pupil for non-pay expenditure lines compared to similar schools
  9. School improvement plan priorities and the relative cost of options
  10. List of contracts with costs and renewal dates
  • 2.3.3 – Budget monitoring – the Trust must prepare management accounts every month setting out its financial performance and position, comprising budget variance reports and cashflow forecasts with sufficient information to manage cash, debtors and creditors.
  • Management accounts must also be shared with the Chair of trustees every month.. and with other trustees six times a year. The Board must ensure that appropriate action is being taken to maintain financial viability.. including addressing variances between budget and actuals.
  • The Trust must select key financial performance indicators and measure its performance against them, including an analysis in its annual report. The Accounts Direction for 2017/18 listed some examples:

“Key financial performance indicators and, where appropriate, an analysis using other key performance indicators including information relating to environmental and employee matters. For example. this could include, but may not be limited to, Ofsted inspection outcomes, examination / key stage results, pupil attendance data and pupil recruitment data, in addition to financial and investment performance. It could be presented as both achievements against objectives for the current accounting period, and as trends over time.”

  • 2.3.6 – The Trust must have an investment policy to manage and track its financial exposure and ensure value for money – and it must be reviewed regularly. A Trust must exercise care and skill in investment decisions and take professional advice, ensure that exposure to investment products is tightly controlled: security of funds must take precedence over revenue maximisation.
  • 2.4.4 Executive Pay – the Board must ensure there is a process for determining executive pay which is agreed in advance and documented. Levels of pay must be defensible relative to the public sector market and the documentation setting out the rationale must be retained. There is a presumption that non-teaching pay should not increase at faster rate than teacher’s pay.
  • Transactions with related parties – no member, trustee, local governor, employee or related individual or organisation may use their connection to the Trust for personal gain. There are no payments to any trustee, unless permitted by the Articles or the Charity Commission and permitted by the Secretary of State. This will apply if payments are made to a business entity which employs the trustee, is owned by the trustee or in which trustee holds a controlling interest. The ‘at cost’ requirement must be complied with for payments over £2500- the payee must provide evidence that services have been provided ‘at cost’ i.e. without a profit element. This issue recently came to prominence in the media after an investigation by Panorama into the affairs of Bright Tribe academy trust.
  • 3.10.4 – All transactions with related-parties after 1 April 2019 will need to be reported to ESFA using online form. ESFA prior approval will be required if the contract exceeds £20k (or cumulatively with other contracts it would breach that limit). (NB this excludes payments under a contract of employment through Trust payroll).

The Academies Financial Handbook 2018 is amplified by the Academies Accounts Direction. Whilst most of this is a technical document, there are four significant changes to flag:

  • There is now clear guidance that purchases of alcohol or excessive gifts with academy funds are examples of irregular expenditure (para 9.1.22).
  • There is a new requirement to include information on trade union facility time to comply with the Trade Union (Facility Time Publication Requirements) Regulations 2017. This requirement only applies where trusts have more than 49 full-time equivalent employees throughout any seven months during the reporting period.
  • Financial statements will need to include information on:
    • The number of employees who were relevant union officials during the period
    • The number of employees and their percentage of time spent on facility time
    • The percentage of pay bill spent on facility time
    • Details of paid trade union activities
  • Accounts must also now include a section dedicated to the Trust’s fundraising practices, to comply with the Charities (Protection and Social Investment) Act 2016. This requires details about:
    • The Trust’s approach to fundraising
    • Details of any work with, and oversight of, professional fundraisers and commercial partners
    • Confirmation that fundraising conforms to recognised standards
    • Details of the monitoring of fundraising carried out by agents
    • Any complaints received
    • How the public, including vulnerable people are protected, from unreasonably intrusive or persistent fundraising approaches.
  • Apprenticeship levy costs should be included as part of social security costs note to accounts. Where apprenticeship levy-funded training is received in year, this should be recognised as notional income and notional expenditure. The 10-per-cent top-up funding provided by the government should also be recognised in this manner. (para 8.13)

If you have any questions about any aspect of academy governance please get in touch.

Mark Johnson is an independent legal and governance specialist working with academy trusts, schools and not for profits to help them flourish. He serves as the company secretary of 2 MATs in Cheshire and independent audit committee member of a large MAT in Manchester. elderflowerlegal.co.uk 

Relentless Focus on Good Governance in Academies Continues

Good Governance in Academies is Key Focus for DfE

Over the Summer the Department for Education quietly published some documents which show the focus on good governance in academies remains a key priority. The first document was the widely expected new edition of the Academies Financial Handbook which applies from 1 September. Secondly, the Education and Skills Funding Agency (the new name for the EFA) published three financial management and governance reviews into multi academy trusts. These highlight case studies of where things can go wrong. In case you missed them, here we summarise the key points to be aware of.

Academies Financial Handbook

It is a requirement of all Academy Trusts’ Funding Agreements that the Academies Financial Handbook (’AFH’) is complied with, in particular the list of ‘must haves’ in Annex C. The new AFH applies as from 1 September 2017. The main changes in this new edition concern governance and financial control.

Governance

  • There is an emphasis on greater clarity about the roles of members, trustees and salaried employees

There must be clear separation between the roles of member, trustees and executive (paid) managers. For example, employees of the Trust must not be appointed as members, unless permitted by the Articles of Association. The current model articles do not allow members to be employees, but some older versions do. Trusts with older articles may wish to consider revising their articles to reflect best practice.

In addition, the DfE’s preference is that no other employees, other than the Senior Executive Leader, should serve as a trustee. This helps to ensure there are clear lines of accountability through the Senior Executive Leader. Older Articles may talk about no more than one third of trustees being employees. Again, Trusts may wish to adopt this change in line with best practice.

  • Trusts are reminded that the overarching seven Nolan principles of public life apply to everyone holding office in an Academy trust (selflessness, integrity, objectivity, accountability, openness, honesty and leadership).
  • Annual letters to Trusts’ Accounting Officers/CEOs from the ESFA’s accounting officer must be discussed by the Board and appropriate action taken

The ESFA sends letters to Trusts’ Accounting Officers/CEOs from time to time which cover issues pertinent to their role and ESFA reviews. The letter must now be shared with members, trustees, Chief Financial Officer and other members of the senior leadership team. It must be discussed by the Board of trustees.  This discussion should be clearly documented in the Trust board minutes. All “Dear Accounting Officer” letters can be found on the DfE website here.

  • Improving efficiency and value for money in academy trusts

Where the ESFA have concerns about a Trust’s financial management, but not enough to issue a Financial Notice to Improve (FNtI), they may require the Trust to work with an expert in school financial health and efficiency to support the Trust and identify where improvements can be made. They may also prescribe this as a condition of a FNtI.

  • There is an emphasis on the importance of addressing skills gaps on the Board at key transition points such as growth periods. Trusts are recommended to use the DfE’s competency framework for governance to determine skills gaps in the Board (see more here)
  • Trusts should consider the key features of effective governance in the DfE’s Governance Handbook when assessing their effectiveness

Boards should be looking to implement these as part of their annual assessment of their effectiveness and skill-set, as well as minuting these discussions.

  • Edubase must be kept up to date with details of changes to Trustees and members within 14 days

Recent ESFA reports have highlighted that some Trusts are not keeping their records up to date of who are members and trustees promptly following either appointments or resignations. This applies to both Edubase and Companies House records. Someone should be given specific responsibility to complete this task, usually the Company Secretary.

  • Appointment of auditors must be approved by the members, not just the trustees

The Board of trustees may believe they are responsible for the appointment of auditors. However, this is only the case where the Companies Act permits trustees to appoint them e.g. in the Trust’s first accounting period. Thereafter the members must approve the appointment, usually at an AGM.

Financial Control

  • a new section on executive pay states that Boards must ensure their decisions on levels of pay follow a robust evidence-based process and reflect the roles and responsibilities of individuals

The decisions should be backed up with supporting evidence and secure records kept–such as confidential appendices to minutes.

  • Repercussive transactions’ as well as ‘novel or contentious transactions’ now require ESFA approval

Repercussive transactions are those which are likely to cause pressure on other trusts to take a similar approach and hence have wider financial implications for the academies sector.

  • Clarification that the non-statutory/non-contractual element of a severance payment limit of £50,000 is based on the gross amount before any deductions for tax etc.

This is a welcome technical clarification. The full new Handbook can be viewed here.

Financial Management and Governance Reviews

The ESFA can initiate a Financial Management and Governance review at an academy trust following a complaint, or on its own initiative, either at random or as part of its new routine assurance activities. There have been 25 such reviews conducted since 2013. The typical remit of a review is:

  • to assess the financial controls and management in a Trust to see if they are compliant with the AFH and Funding Agreement
  • to assess the adequacy and effectiveness of governance, risk management and internal controls
  • to assess propriety, regularity and value for money

The ESFA’s policy is to publish their findings to inform public debate and scrutiny. The academy trust is usually given 5 working days to comment on the report before it is published. Three such reports were published over the Summer.

The first review concerns the DRB Ignite MAT. The review was instigated following a complaint about a leasing arrangement for whiteboards at one of their schools. However, the remit soon expanded to cover scrutiny of wider governance arrangements in the MAT.  The key findings of the review were:

  • There was a lack of separation of the roles of members, trustees and executive managers. The Accounting officer was a member as well as being a director. The Accounting Officer was not on the Trust’s payroll and the role had rotated among the directors three times. There was no written agreement in place setting out the role and responsibilities of the Accounting officer – in breach of the Academies Financial Handbook. The AFH requires that the role be allocated to a Single Executive Leader, who is accountable for the use of public money. The CFO role was contracted out to another group company and the Trust board did not have any independent directors with accountancy experience or qualifications. This created a risk of inadequate oversight and challenge. The named member of the trust was a company which had since become dormant, thereby breaching the Articles of Association.
  • The trust was using related commercial companies and connected parties to provide 83% of its central functions and expenditure without following a proper procurement process. Remember that delivery of services by related parties can only be ‘at cost’ (see below) and a contract for services or goods may need to advertised and comply with EU procurement rules if over a threshold of £164,176 (unless it can be argued that by their nature the services fall under the Light Touch Regime in which case a higher threshold of £589,148 may apply). The ESFA was not satisfied that adequate procedures were in place to manage conflicts of interest between the Trust and connected companies. The same people sat on the Trust board and the boards of group companies providing the services. Directors were approving invoices from their own group companies for payment. This was potentially a breach of Companies Act duties and charity law, as well as the AFH.
  • The award of a contract for smartboards at one of the trust’s primary schools to a group company did not follow best practice and could not demonstrate value for money
  • The trust had failed to keep EduBase updated with details of members and trustees within 14 days.
  • There was no central of register of contracts, making it difficult to coordinate the re-tendering to drive value for money
  • There was a failure to publish details of business and pecuniary interests of trustees on the website and failure to keep adequate minutes of trustee meetings.

The Trust was ordered to undertake a review of its governance arrangements and carry out urgent corrective actions.

The second review was published on 28 June and concerned the Rodillian MAT. The investigation was triggered by complaints about the Accounting Officer staying at a luxury hotel several nights a week, despite living within travelling distance of the schools. The review quickly broadened in scope and found other issues which are documented in the ESFA report:

  • The Accounting Officer had been reimbursed for hotel accommodation – although there was no policy on approved subsistence and travel in place to measure the reasonableness of this and no evidence of Board approval for the expenditure
  • The trust had rented a flat for the Accounting Officer – although the benefit was not documented – this should have been regarded as a novel or contentious payment and ‘ex gratia’ benefit for which ESFA approval was required
  • The Trust had awarded a contract worth £1.45m for alternative education for students excluded from mainstream provision without following a competitive tendering procedure. Although the contract was for 5 years, the liability in the accounts was only shown as a 3 year commitment.
  • The Trust did not have an up to date financial procedures manual in place
  • There were no proper procedures for authorising payments to suppliers
  • The Trust had entered into supposed ‘operating leases’ of smart boards which were in fact ‘finance leases’ (which require prior approval from ESFA).
  • The Trust Chair was paid for consultancy services – as the Chair was also a member this is not allowed and would have required prior consent from the Charity Commission.

The third review concerned Enquire Learning Trust. According to the report, similar themes came to light:

  • Senior managers were employed ‘off payroll’ through limited companies
  • There was lack of skills and oversight of managers by the Trust Board
  • The role and responsibilities of the Accounting Officer were not documented in a contract
  • The financial reports presented to the board were inadequate and did not give trustees a picture of the overall consolidated financial position of the trust. There was no 3-5 year consolidated forecast.
  • Two significant related party transactions in 2015/16 were not disclosed
  • Financial controls over purchasing, including the use of corporate credit cards were inadequate. The lack of segregation of duties and independent oversight of purchasing and payment arrangements increased the risk of inappropriate expenditure.
  • Trust officers had claimed irregular payments for valuations of trust premises in connection with a scheme to transfer the Trust premises into their personal pension funds and lease it back to the Trust
  • There was no central asset register to keep track of valuable items such as laptops issued to staff
  • There was no audit committee or independent Responsible Officer to carry out assurance checks

Lessons to be learned

A complaint can be triggered by a disgruntled employee or governor – once the process starts it can be very resource intensive to manage and the scope of the inquiry can quickly widen.

  • Understanding the separation of roles between members, trustees and executive managers is absolutely critical. A clear Scheme of Delegation, Code of Conduct, policies and procedures are your first line of defence in demonstrating compliance. Be clear about who your members are and keep the register up to date so it is clear who actually holds the voting rights. Make sure they are involved in relevant key decisions and due process is followed.
  • Remember the ‘at cost’ requirement if awarding contracts to a ‘connected party’. An individual or company can supply good and/or services up to £2,500, cumulatively, in any financial year which can include profit; however, beyond £2,500, all transactions must be ‘at cost’ without profit. Where ‘at cost’ is triggered, a statement of assurance is required from the supplier to support the arrangement, which the Accounting Officer must review to ensure that there are no issues with the transaction. ‘Connected parties’ include members, trustees, sponsors (as well as their family members and business associates).
  • Develop a set of Standing Orders and Financial Regulations which set out the requirements for obtaining competitive quotes, authorisations for expenditure, delegated limits and the limited circumstances in which this can be waived. Remember that contracts with a value in excess of £164,176 may be subject to EU competitive tendering rules.
  • Be very careful about awarding contracts to ‘connected parties’. These will almost always be spotted during the external audit and will be flagged up in your annual accounts attracting further scrutiny. The Articles of Association will usually set out the process which must be followed to properly authorise such a transaction – any trustees with an interest in the contract must declare this and must withdraw from the meeting.
  • Develop a set of policies on subsistence and accommodation expenses, gifts and hospitality so that everyone knows where the boundaries are.
  • “Off payroll arrangements” – whilst there may be the odd time such arrangement is appropriate, for standard roles payments should be on-payroll, which also helps ensure that the individual is meeting their tax obligations.
  • Make sure that novel and contentious issues go to the Board for discussion and that decisions and the justification for them are properly minuted.
  • Understand the difference between finance leases and operating leases . Under an operating lease all risks and rewards related to asset ownership remain with the lessor for the leased asset. In this type of lease, the asset is returned by the lessee after using it for lease term agreed upon. The ownership of the asset remains with the lessor. However, under a finance lease the risks and rewards related to ownership of asset leased are transferred to the lessee. The lessee usually has an option to acquire ownership at the end of the lease by making a further payment. In accounting terms, this is usually treated like a loan.
  • If these Trusts had had an effective Audit Committee providing oversight and challenge, these situations could probably have been avoided. As one review commented: “Audit Committee functions should be established in such a way as to achieve internal scrutiny that delivers objective and independent assurance. Where the Responsible Officer function is provided by [a group company] it cannot be shown to be independent and hence is in breach of the Academies Financial Handbook”. See more on the role of an Audit Committee.
  • It is always good practice to take a step back before entering into any unusual transactions and consider the wider implications. Could this transaction attract adverse media coverage? Is it outside our normal business activity? If we enter into the transaction and another academy trust hears of this, will it impact upon the wider sector? Whilst this  comes down to judgement and perception, it may be safest to consult with ESFA before performing the transaction rather than being criticised later for making the wrong decision.
  • Consider undertaking a governance review facilitated by an external provider to check your house is in order and that you are following best practice. We offer a fixed price service GovernanceCHECK360.

 


Mark Johnson is an independent solicitor and chartered company secretary helping academy trusts, schools, colleges and not for profits to stay compliant, manage risks and plan for success. Contact us today for a no-obligation chat or check out our website at elderflowerlegal.co.uk or call 01625 260577.  Find out for more details of our service packages here.
If you would like to be kept up to date on more topics like this, then why not sign up to receive our regular newsletter.

Data Protection – Everything You Need to Know Part 2

Data Protection – Everything You Need to Know But Were Afraid to Ask – Part 2

‘It used to be expensive to make things public and cheap to make them private. Now it’s expensive to make things private and cheap to make them public.’- Prof Clay Shirky, NYU.

In Part 1, I outlined how the protection of personal data has become a critical risk area for business, not-for-profits and charities as the regulator, the Information Commissioner’s Office (ICO), takes a tougher stance on enforcement of the rules.  A series of high profile incidents have heightened public concern about privacy and the misuse of personal data. Now organisations will need to prepare for even more stringent rules: in spite of Brexit, the new EU-wide General Data Protection Regulation (GDPR) will still come into force on 25 May 2018.  In Part 2, I explain what will change when the GDPR comes into force from 25 May 2018.

What will change under the GDPR in 2018?

The GDPR will introduce a series of explicit rights for individuals in respect of their personal data, some of which are new, and some are enhancements of the existing position:

  • Right to access data (to be told whether personal data are being processed and access a copy)
  • Right to erasure (if consent is withdrawn, or there is no legal basis for holding the data individuals may request erasure)
  • Right to portability (the right to require data to be transferred to another data controller in a machine readable format)
  • Right to rectification – an individual’s right to have inaccuracies corrected or include a supplementary statement
  • Right to restrict processing – data to be held in limbo while any disputes are resolved
  • Right to be informed – i.e. to be told what information is being processed and for what purpose
  • Right to object – the right to stop personal data being processed by withdrawing consent or some other legal basis.

The key changes

  • The definition of ‘personal data’ will be widened to include IP addresses, genetic and biometric data.
  • Organisations will need to keep proper records of their data processing activities and make these available to the regulator if requested.
  • Data processors (as well as data controllers) have direct obligations for the first time. These include an obligation to: maintain a written record of processing activities carried out on behalf of each controller; designate a Data Protection Officer where required; appoint a representative (when not established in the EU) in certain circumstances; and notify the controller without undue delay on becoming aware of a data breach. How data protection matters are addressed in supply and other commercial agreements will need to be reviewed – especially the allocation of liability for data breaches.
  • The £10 fee for accessing records will be abolished and the time limit for dealing with a request to access or correct a record will be shortened from 40 days to 1 month. Extensions of up to 2 months may be allowed if the request is complex. Requests may be refused if they are ‘manifestly unfounded or excessive’
  • The right to request erasure of data has been strengthened. Under current rules the erasure can be requested if processing it causes unwarranted and substantial damage or distress. There will be specific circumstances where erasure can be requested e.g. the individual withdraws consent to processing, or the data was unlawfully processed in the first place. There will be very limited grounds to refuse to erase, e.g. to comply with a legal obligation in performing a public interest task or for public health purposes.
  • New right to ‘data portability’ – individuals will be allowed to obtain and re-use their personal data for their own purposes across different services (e.g. for use on a price comparison site). Organisations must provide the data free of charge in a machine readable format e.g. a .csv file within 1 month of a request.
  • There will be significantly harsher penalties for data breaches – the current limit of £500,000 will increase to 20 million euros or 4% of an organisation’s global turnover, whichever is greater
  • An explicit right for individuals affected by a breach of the rules by a data controller or a data processor to bring a claim for compensation which need not be for financial loss, it could cover personal distress and anxiety.
  • Special rules will apply to children’s personal data – privacy notices must be child-friendly. Before offering online services to children under 16 (most likely set at under 13 in the UK), parent or guardian’s permission will be required (except for online counselling and preventative services). (Note this does not affect the existing law for offline transactions where the capacity of the child may be relevant).
  • New privacy notices will be required which provide information about retention periods for data, the rights of the data subject, the right to withdraw consent, the right to complain to the ICO, whether it is a statutory or contractual requirement to provide the data, and whether any of the data will be used for automated decision-making about the individual.
  • There are potentially onerous new obligations on accountability and information governance. There is an explicit duty to put in place appropriate organisational measures to demonstrate compliance with the rules, which could include data protection policies, staff training, internal audits of data held and processing activities, privacy impact assessments when implementing new technologies or activities, reviews of internal HR policies and regular reviews of security arrangements. If your organisation has more than 250 employees there will be a more onerous duty to maintain records of processing activities. These records may be called for by the ICO as part of an investigation and may form an important part of your defence to any enforcement action.
  • Mandatory duty to appoint a Data Protection Officer for public authorities or organisations which undertake large scale monitoring of individuals or large scale processing of ‘sensitive personal data’. Note it is the scale of the processing, not the size of the organisation that matters. The DPO’s role is to (a) inform and advise the organisation and its employees about their data protection obligations, monitor compliance with data protection laws, conduct internal audits, train staff and coordinate data protection activities, be the first point of contact with ICO and supervisory bodies, as well as customers and suppliers whose data is being processed. The DPO is expected to report directly to the Board and must be given adequate resources and authority to perform their role. The role does not necessarily have to be an employee- it can be contracted out.
  • Duty to report data breaches to the ICO where it is likely to result in a risk to the rights and freedoms of individual affected; also a duty to notify the individuals affected if there is a high risk to their rights and freedoms. Notification must be made within 72 hours. The notification must detail the number of individuals and records involved, a description of the likely consequences of the data breach and the measures to be taken to (a) deal with the breach and (b) mitigate possible adverse effects. Failing to notify a breach can result in a fine of up to 10 million euros or 2% of the organisation’s global turnover!

What do we need to do to prepare for GDPR?

  • Ensure Board members and management are aware of the new duties and are taking active steps to prepare, including securing resources and budgets required.
  • Designate a Data Protection Officer to take responsibility for compliance and decide where this role will sit within your organisation’s overall governance structure.
  • Review all policies and procedures which are relevant to data protection and privacy.
  • Conduct information audit and privacy impact assessments – understand what personal data your organisation holds, where it comes from and with whom you share it; identify the legal basis for processing the information, document your findings. Is there a clear audit trail showing how and when individuals gave their consent to processing of their personal data and opted into marketing communications?
  • Review your privacy notices- see examples of good practice here
  • Take extra care if you are collecting information about children – bear in mind the new requirement to obtain parent or guardian’s consent to processing data about children in most cases.
  • Prepare to deal with subject access requests within the shorter time period of 1 month
  • When contracting out work to third parties (e.g. payroll providers, HR consultants, fulfilment houses)- check what measures they have in place to ensure compliance with the new duties – are they signed up to any certification schemes or codes of conduct? Ensure you have appropriate contractual clauses in place to protect your organisation against their failures.
  • Have robust procedures for detecting and investigating data breaches and internal reporting so that notification can be made to the authorities within the 72 hour period.
  • Review insurance covers to determine what risks or incidents are covered or excluded.

The new GDPR represents a step-change in the level of risk for organisations collecting, holding and processing personal data. It will be essential to begin preparations now, identifying resources, reviewing current procedures and policies in readiness.  Elderflower Legal offers specialist legal, governance and company secretarial services to help keep your organisation compliant elderflowerlegal.co.uk.

 


Elderflower Legal & Secretarial offers a cost-effective outsourced company secretarial service to small business, charities, social enterprises and academy trusts. For a fixed monthly fee we can provide peace of mind to directors and board members that compliance duties are being met, returns filed by the deadlines and risks properly identified.
Contact us today for a no-obligation chat or check out our website at elderflowerlegal.co.uk or call 01625 260577.
Find out for more details of our service packages here.
If you would like to be kept up to date on more topics like this, then why not sign up to receive our regular newsletter.

Data Protection – What You Need to Know

Data Protection – Everything You Need to Know But Were Afraid to Ask

We thought digital was the new oil, but discovered it is also the new asbestos”- Christopher Graham, former Information Commissioner, 2016.

The protection of personal data has become a critical risk area for business, not for profits and charities. The regulator, the Information Commissioner’s Office (ICO), is taking a tougher stance on enforcement of the rules.  A series of high profile incidents have heightened public concern about privacy and the misuse of personal information. Now organisations will need to prepare for even more stringent rules: in spite of Brexit, the new EU-wide General Data Protection Regulation (GDPR) will still come into force on 25 May 2018.

What should we already be doing?

The existing rules on data protection cover the collection, storage and processing of personal data about individuals. They give individuals a right to request data held by organisations (a “subject access request”) and the right to correct errors. They also create offences where data is lost or stolen due to ineffective security or carelessness – which can lead to significant fines. Particular care must also be taken around marketing activities where contact is made with prospects, supporters, donors or service users. The general principle is that you must have the consent of the person you are contacting before sending them a communication. When you collect information on a paper form or via a website, or over the phone, you must tell people in a ‘privacy notice’ why you are collecting the information, what it will be used for and who it may be shared with. They must be given the option to specifically ‘opt in’ to different types of marketing communications by ticking a box. Pre-ticked boxes are not allowed. The reputational and financial risks of getting it wrong can be very serious. In 2014, the organisers of Park Life Festival were fined £70,000 by the ICO for sending unsolicited and inappropriate marketing text messages. In December 2016, the ICO announced fines for the RSPCA (£25,000) and British Heart Foundation (£18,000) over the inappropriate handling and sharing of donors’ personal information without permission.

The current rules

The Data Protection Act 1998 governs the holding and processing of personal data. ‘Personal data’ means any information which identifies any living individual, whether in digital form, on disk, USB sticks, and includes photos, video and sound recordings. ‘Processing’ personal data means obtaining, recording or holding the information on computer systems, in the cloud or in a paper filing system. More stringent rules apply to ‘sensitive personal data’ which includes information about racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health, sexual life, details of any offences committed or alleged.

Businesses and charities routinely handle the personal information of employees, volunteers, service users, and suppliers. It is therefore very likely that these activities will be caught by the provisions of the Act. A ‘data controller’ is a person or entity that determines the purposes for which personal data is processed. They may also be processing the data. A ‘data processor’ is usually, but not always, a service provider who handles the data but doesn’t control it. Under the current law, the legal responsibility for compliance falls directly on the data controller and not on the data processor. If you are a ‘data controller’ under the Act and fail to register your organisation with the Information Commissioner, you can be fined.

The Act says that all personal data must be:

  • Fairly and lawfully processed (i.e. you must be transparent with individuals about what you’re doing with their data and why, you must have a lawful basis for collecting and processing the information and you process it in a way that individuals would reasonably expect);
  • Processed for specified purposes only (i.e. you must tell people why you are collecting data and what it will be used for from the outset and not then use it for other purposes);
  • Adequate, relevant and not excessive;
  • Accurate and, where necessary, kept up to date (you have positive duty to keep the information up to date and correct any errors);
  • Not kept for longer than is necessary (so employment applications, CVs etc should be securely destroyed after a reasonable period);
  • Processed in line with the rights of the individual;
  • Kept secure (i.e. employ reasonable security precautions); and
  • Not transfer the data to countries outside the European Economic Area, unless the information is adequately protected. Care must be taken if any of your data is stored on cloud based servers in the United States or other countries which do not have a ‘safe harbour’ arrangement in place (e.g. via cloud based accounting, HR or CRM systems). Some transfers are still permitted e.g. if the individual specifically consents, or if there is a suitable contract in place with the data handler to protect the data.

Non-compliance can result in an enforcement notice preventing a business from processing data, effectively preventing many businesses from operating, together with significant fines up to £500,000. Managers and directors can also be prosecuted personally for non-compliance if the offence was committed “with their consent or connivance”.

Individuals have a right to ask your organisation to disclose what personal data you hold about them by submitting a subject access request and paying a fee of £10. You must respond within 40 days. If you fail to respond the requester can make a complaint to the ICO. So you need to be careful about the records, notes and correspondence you keep about employees, job applicants and service users, since it could all be disclosable to them upon request!

The key steps to ensure compliance are:

  • Ensure your organisation is registered with the ICO as a data controller
  • Prepare a Data Protection Policy
  • Put in place appropriate ‘privacy warnings’ for clients and customers giving them the required notices and informing them of their rights
  • Ensure that you hold no more personal data than is necessary for the business activities that you perform
  • Establish procedures for staff to follow when processing personal data. (Demonstrating that procedures were put in place might be a defence in the event of a complaint brought against you)
  • Train, and regularly refresh, all your staff in best practice
  • Put in place contracts with your suppliers which assist in the protection of information
  • Check your insurance and evaluate your risks of suffering a data breach or security incident

Data controllers must put in place adequate technical and organisational measures to safeguard personal data from destruction, accidental loss, unauthorised access or disclosure.  Data breaches can occur through unauthorised entry into IT networks, loss of mobile devices or memory sticks, or even simple errors like leaving confidential papers in unsecured waste bins. In recent years, the ICO has toughened its stance on prosecuting data breaches. For example, in July 2014, the ICO fined a Thomas Cook subsidiary, Think W3 Limited, £150,000 after a hacker stole more than 1 million customers’ personal details – including credit and debit card numbers – due to poor data security measures on its website. In March 2014 the ICO imposed a penalty of £200,000 on the charity British Pregnancy Advice Service (BPAS) for exposing thousands of personal details of patients to a malicious hacker. The charity failed to realise its website was storing the name, address, date of birth and telephone number of anyone who had requested a call back for advice on pregnancy issues. The personal data was not stored securely and a vulnerability in the website’s code allowed the hacker to access the system and locate the information.

Social media such as Facebook or LinkedIn company pages can also be subject to the Act. A data controller who runs an online forum has a responsibility to take reasonable steps to check the accuracy of any personal data that is posted on its site by third parties and presented as a ‘matter of fact’. For example, the operator of a site which invites service users to post reviews and feedback on service providers would be subject to this duty.

Special rules for electronic marketing

The Privacy and Electronic Communications Regulations (PECR) were introduced in 2003 to complement the Data Protection Act. They introduced specific rules about sending marketing and advertising by electronic means, including email, telephone, text messages, picture messages and fax. ‘Marketing’ covers not just the sale of products and services, but also the promotion of aims and ideals. In many cases, organisations need consent send individuals marketing or to pass their details on. There is a limited exception for existing customers and clients known as the “soft opt in”, but only for commercial products or services – not campaigning and fundraising activities. Organisations will need to demonstrate through appropriate records that consent was knowingly and freely given. Consent may sometimes be time-limited, depending on the circumstances. Organisations must always say who they are and provide contact details.  Individuals can ‘opt out’ of cold calls by registering with the Telephone Preference Service. You must not continue to send marketing messages to a person who objects or has opted out. Particular care must be taken if your organisation uses bought-in lists for marketing. Appropriate due diligence should be carried out on the quality of the list before proceeding, including obtaining assurances about whether the individuals have ‘opted in’ to receive marketing. Beware of the temptation to sell your own lists of supporters to others without permission. Pharmacy2U was fined £130,000 by the ICO for selling on their customer list, when customers had not given their consent for personal data to be sold on. This can be a particular issue to focus on where mergers, acquisitions or outsourcing are taking place.

Be careful about sharing data

A particular area of risk is the sharing of personal data. Charities may sometimes have a legitimate need to share or disclose data to other agencies and organisations in order to best serve the needs of their service users, or to protect vulnerable beneficiaries. There are a number of lawful routes for sharing data:

  • The person has knowingly given their express consent to the passing on information (usually on a paper form or website sign-up).
  • The processing is necessary in relation to a contract which the individual has entered into; or because the individual has asked for something to be done so they can enter into a contract.
  • The processing is necessary because of a legal obligation that applies to your organisation, except an obligation imposed by a contract (for example, a safeguarding duty).
  • The processing is necessary to protect the individual’s “vital interests”. This condition only applies in cases of life or death, (e.g. where an individual’s medical history is disclosed to a hospital’s A&E department treating them after a serious road accident).
  • The processing is necessary for administering justice, or for exercising statutory, governmental, or other public functions.
  • The organisation needs to process the data for the purpose of its own ‘legitimate interests’ or the legitimate interests of the third party that the information is disclosed to. The burden is on the organisation to demonstrate that is the case and that the individual is not harmed.

You can share without an individual’s knowledge in cases where personal data is processed for:

  • the prevention or detection of crime;
  • the apprehension or prosecution of offenders; or
  • the assessment or collection of tax or duty.

However, the sharing of information must be fair and transparent. People should generally be aware of which organisations are receiving their personal data, and what it is being used for. The best way to achieve this is to make sure a clear privacy notice is included on application forms, membership forms, website forms etc. that which sets out all this information. It is good practice to keep records of data that has been shared and the reason(s) for sharing. If you regularly share or disclose data to other organisations, you should consider having a Data Sharing Agreement with them, setting out respective responsibilities, requirements for security and for secure deletion of data when no longer required.

Many organisations have come a cropper for sharing personal data for non-legitimate reasons. This can be where they sell a mailing list of supporters to another organisation, or where they pass on personal data to another agency where they shouldn’t have done so and this causes harm to someone (e.g. passing on information about an employee’s health condition to a third party).

Right to object – individuals have a clear right to object to your processing their personal data and this must be brought to their attention when you first collect the data from them. If you are processing data for marketing purposes you must stop as soon as you receive the objection- there are no grounds to refuse or exemptions.

Other legal rules can also apply to disclosing or sharing personal data, such as information obtained in confidence and the Human Rights Act 1998 (Article 8 right to private and family life, home and correspondence).

In Part 2 of this post, we will examine the more stringent rules coming in May 2018 when the new General Data Protection Regulation enters into force.

 


Elderflower Legal & Secretarial offers a cost-effective outsourced company secretarial service to small business, charities, social enterprises and academy trusts. For a fixed monthly fee we can provide peace of mind to directors and board members that compliance duties are being met, returns filed by the deadlines and risks properly identified.
Contact us today for a no-obligation chat or check out our website at elderflowerlegal.co.uk or call 01625 260577.
Find out for more details of our service packages here.
If you would like to be kept up to date on more topics like this, then why not sign up to receive our regular newsletter.

Could a Company or Charity Secretary Provide Peace of Mind?

Retaining a professional company secretary or charity secretary can bring peace of mind

With an increased focus on effective governance arrangements in companies, not for profits, academy trusts, clubs and social enterprises, and an ever-expanding burden of red tape and compliance duties, Mark Johnson argues that a professional company secretary or charity secretary can add real value to your organisation and provide peace of mind for directors or committee members.

Does any of this sound familiar to you…?

“Sorry we couldn’t get the Board papers out in advance – there just wasn’t time, so can we just scan through the papers during the meeting and take them as approved..?

“The minutes weren’t circulated after the meeting because Jean didn’t have time this month what with her mother being so ill; so most of the action points were unfortunately overlooked. But don’t worry we’ll pick them up at next meeting in 3 months’ time…

“I’m sure this issue has come up in previous meetings, if only we could find the minutes and records to look back through. They used to be on John’s laptop before he stepped down..

“The Board has been grappling with this issue for a while now: like a bad smell, it keeps coming back to every meeting – but no one seems to get hold of it, find out what the answer is, nail it and allow us to move on! I would ask our lawyers, but I worry they would make an industry out of it and it could end up costing us a fortune…

“I sometimes worry about whether we are keeping up to date with our responsibilities – law and policy can change really fast in this area and none of us really has the time to research the latest position. I don’t really know what would happen if we got it wrong – I just hope we’re properly insured…if only we could find the policy documents.

“I know our policies and procedures probably need a thorough review and updating, but we’re all volunteers and we just don’t have the time and capacity to move it forward.

“I just assumed that the Treasurer would file the accounts and annual return by the deadline. It came as a very unpleasant surprise when we all got fined for missing the deadline.

“It came as a nasty shock when we realised were responsible for thousands of pounds in redundancy payments. We assumed the manager who signed the contract had read it properly, but it seems not, and the Board were really unaware of what we had taken on. This could mean we have to close down.”

Don’t leave it to chance

Running a company, charity, club or social enterprise involves a wide range of legal and compliance duties. Effective governance requires proper systems for planning meetings, analysing information, following up action points, and keeping on top of compliance and legal responsibilities. Sometimes you don’t know what you don’t know until it is too late! Unfortunately, ignorance of the law is no defence. It can often be very difficult for busy directors and volunteer board members to keep on top of everything. But the consequences of getting it wrong can be very serious. Some recent examples you may have heard about:

  • Charity was fined £200,000 for a breach of data protection laws – hackers broke into their website and stole data about service users. There was no data protection policy in place and staff had not been trained on the importance of data security.
  • The Trustees didn’t really understand how the organisation’s business model worked- they all had busy day jobs and they trusted the highly charismatic leader- after all, she brought in so much funding, and enjoyed a high public profile. What could possibly go wrong? They were devastated when the black hole in the finances came to light and the organisation went bust and they were all ‘named and shamed’ by the media.
  • The Trustees weren’t aware that the wife one of their fellow trustees was a shareholder in a business which had been awarded a contract worth £150,000 by the Trust; the Trustee hadn’t declared his interest, but the auditor picked this up at year end as a ‘related party transaction’ and once it was made public in the annual report and accounts, the media had a field day. The trust is now under investigation for governance failures and accounting irregularities.
  • A local charity was forced to abandon a fundraising event because the required licences from the local authority had not been applied for in time. Tickets had to be refunded. The organisers faced a backlash from the angry public.
  • A housing association signed a contract to deliver a high profile new project and later found that it did not have the necessary powers in its constitution to carry out the activity- the project had to be unwound and thousands of pounds and management time were wasted.
  • The marquee blew over during the event, causing  injury to a child. After consulting some rabid claims management consultants, the parents sued the committee members. They all thought they were insured, but the policy hadn’t been renewed. They ended up paying £10,000 each from their own pocket to settle the case.

All of these problems could probably have been avoided if a professional company secretary or charity secretary had been employed to keep on top of the paperwork, ensure compliance with regulations, analyse risks and sort out problems. Professional company secretaries holding Chartered Status with ICSA- the Governance Institute have undertaken rigorous academic and practical training across a wide range of areas, including corporate law, corporate governance, risk management, strategy and finance.

Start your New Year on the right footing. Consider retaining an ICSA qualified professional company secretary or charity secretary to help you:

  • manage the paperwork,
  • ensure effective meetings
  • keep on top of compliance duties
  • identify and manage risks
  • enhance board performance.

 


Elderflower Legal & Secretarial offers a cost-effective outsourced company secretarial service to small business, charities, social enterprises and academy trusts. For a fixed monthly fee we can provide peace of mind to directors and board members that compliance duties are being met, returns filed by the deadlines and risks properly identified.
Contact us today for a no-obligation chat or check out our website at elderflowerlegal.co.uk or call 01625 260577.
Find out for more details of our service packages here.
If you would like to be kept up to date on more topics like this, then why not sign up to receive our regular newsletter.

Essential Reading on Governance in Multi Academy Trusts

Essential New Year Reading on Governance in Multi Academy Trusts

2017 looks set to be a year of relentless focus on improving governance in Multi Academy Trusts. Over the past two months a number of excellent resources on governance in Multi Academy Trusts have been published. In case you missed them amid the seasonal commotion, here is a synopsis of the main points.

DfE Guidance

In January the Department for Education published a new version of the Governance Handbook which applies to all schools, alongside a new Competency Framework for Governance.

The Governance Handbook is an essential resource for all those involved in governance of education institutions. It outlines the roles and responsibilities of trustees and governors, their legal duties and provides useful links to further resources.

The new edition has been re-structured around a new clearer articulation of the six key features of effective practice and should be read alongside the new Competency Framework, which describes the knowledge, skills and behaviours needed for effective governance.

The DfE believes effective governance is based on six key features:

Strategic leadership that sets and champions vision, ethos and strategy.
Accountability that drives up educational standards and financial performance.
People with the right skills, experience, qualities and capacity.
Structures that reinforce clearly defined roles and responsibilities.
Compliance with statutory and contractual requirements.
Evaluation to monitor and improve the quality and impact of governance

The most significant changes to the content within other sections include:

Section 2: Strategic Leadership

There is a new section at 2.3 bringing together material about the board’s role as the key decision-maker.  Stresses that the Board is accountable and responsible for all the decisions made and that executive leaders must operate within the powers and authority delegated to them.

Section 3: Accountability

There is a much stronger emphasis on ensuring financial propriety at 3.4. It stresses that everyone on the Board must have a basic understanding of the financial cycle and the legal requirements on accountability and spending. There are suggested questions for trustees to ask and a greater emphasis on securing value for money, using tools such as financial benchmarking resources providing comparative data around consumables, resources and utility costs (useful links are provided).

Section 4: People Makes clear the new requirement that all those involved in governance schools and academy trusts, must have a Disclosure and Barring Service (DBS) check.

  • New advice at 4.1.4 on conducting ‘informed’ elections in which the expectations of, and credentials required of, prospective candidates are made clear.
  • New sections bringing together material on the important role of the chair at 4.3 and of the professional clerk at 4.4.
  • A new explanation at 4.8 of the risks associated with close family relationships between those involved in governance or between them and senior employees (The requirement to publish a register of business interests, to avoid conflicts of interest and related party transactions).
  • Details of the duty on boards to provide information about individuals involved in governance via the Edubase system at 4.8.

Section 5: Structures

Updated guidance on the role of and distinction between Trustees and Members at 5.2.1. An explicit statement that “the most robust governance structures will have a significant distinction between the individuals who are Members and those who are Trustees.”

  • 5.6 that all boards are required to publish a scheme of delegation on their website to explain their governance arrangements, together with new guidance on what makes an effective scheme of delegation.
  • Updated guidance on MATs at 5.2.2 emphasising that a MAT is a single legal entity and that the buck stops with the Board of Trustees in relation to the performance of all schools within the Trust. A section on umbrella trusts at 5.5.1. Now an explicit statement that the DfE will not approve existing trusts wishing to join an umbrella trust which has powers of intervention or governance over its member schools.

Section 6: Compliance

Confirmation at 6.7 that a designated individual on the board must take leadership responsibility for the organisation’s safeguarding arrangements, which include its Prevent duty. New advice at 6.7.1 on handling allegations of abuse made against other children, including ‘sexting’.

Section 7: Evaluation

Updated content on schools causing concern and on coasting schools at section 7.4, outlining OFSTED’s new approach.

The new Competency Framework for Governance

With a foreword by Sir David Carter, the National Schools Commissioner, the new Competency Framework is designed to help governing boards assess what knowledge, skills and behaviours are needed to govern their school or group of schools, most effectively. The Competency Framework is organised into blocks of ‘who needs to have this’. There are some skills or knowledge that the DfE thinks everyone on the board needs to have, and others that the Chair or ‘at least someone’ on the board will need to have.

The Competency Framework is made up of 16 competencies. The competencies are grouped under the headings of the ‘six features of effective governance’, which are described in the Governance Handbook:

1 Strategic leadership

a) Setting direction
b) Culture, values and ethos
c) Decision-making
d) Collaborative working with stakeholders and partners
e) Risk management

2 Accountability

a) Education improvement
b) Rigorous analysis of data
c) Financial frameworks and accountability
d) Financial management and monitoring
e) Staffing and performance management
f) External accountability

3 People

a) Building an effective team

4 Structures

a) Roles and responsibilities

5 Compliance

a) Statutory and Contractual requirements

6 Evaluation

a) Managing self-review and personal skills
b) Managing and developing the boards effectiveness

However, the guidance emphasises that principles and personal attributes that individuals bring to the board are just as important. All those involved in governance should exhibit the 7 C’s:

Committed – devoting the required time to the role
Confident – of an independent mind, able to lead and contribute to courageous conversations
Curious – an enquiring mind and analytical approach
Challenging  – providing appropriate challenge to the status quo, not taking information at face value
Collaborative – prepared to listen and work in partnership with others
Critical – critical friendship which enables bot challenge and support
Creative – able to challenge convention wisdom and be open-minded

The Framework will help with board performance reviews, identifying training needs, succession planning and induction. It may also help prepare interview questions for prospective trustees and governors.

The new Governance Handbook and Competency Framework can be accessed here.

Multi Academy Trusts – Good Practice Guidance and Expectations for Growth

The DfE published this guidance on establishing and developing a multi academy trust in December.

This guidance provides a framework which helps trusts at all stages of their development learn from other multi academy trusts. It sets out the characteristics of successful academy trusts, and the barriers that they will need to overcome in order to secure expansion and ongoing success. It gives advice on what Regional Schools Commissioners look for when they assess and approve:

  • the establishment of new multi-academy trusts (MATs)
  • plans for growth in existing MATs

It also gives guidance on developing a successful multi academy trust, including advice on:

  • school governance and leadership
  • helping schools improve
  • financial sustainability and risk management

In his foreword Sir David Carter states: “There are at least three core elements that the strongest trusts exhibit. First, a board that contains a wide range of professional experiences that can deliver the dual responsibility of building strategy to deliver great outcomes for children alongside the culture of accountability that is necessary across the organisation. Second, the appointment of an executive leader, typically an executive head or chief executive officer, who is held to account for standards across the schools. Third, the creation and execution of a school improvement strategy that develops and improves the workforce, builds succession and enables the strongest teachers and leaders to influence outcomes for more children.”

He signals clearly the move towards more consolidation of schools into Multi Academy Trusts, as well as more collaboration between and possible mergers of MATs.

“This guidance is intended to support and encourage those trustees and leaders seeking to start a new MAT, as well as those who have a strategic plan to grow the number of schools they are accountable for in the coming years. In simple terms, this is how we intend to build the culture and ethos for this to happen. We want to encourage, support and challenge the best leaders to take responsibility for more schools and to bring their expertise in school improvement to benefit more children… At the start of the 2016/17 academic year we saw more schools than ever enjoying the benefits of working in a MAT, with 97% of schools converting to become academies now joining MATs.”

In looking at system design, the guidance states “the academy system provides greater opportunities for teachers and leaders, which makes it easier to put in place those factors – better teaching, leadership, career development, curricula and accountability – that incontrovertibly drive up standards”. However, interestingly there is also an explicit statement that flies in the face of received wisdom: “The government has also made clear that schools will [still] be able to become or continue as single academy trusts, provided they are successful and sustainable.”

Capacity to Grow

When agreeing whether a MAT has the capacity to grow, or when approving a MAT arrangement, RSCs will want to explore with the trust:

  • the plans for medium and long-term development of the trust and how they build capacity within their trust and their schools;
  • how it intends to support school improvement and whether this is underpinned by a clear school improvement model;
  • what the needs and development challenges are for all the schools within the trust, irrespective of current performance levels;
  • whether the trust’s model of due diligence enables the depth of the operational and strategic challenge to be fully understood; and
  • how the trust will contribute to wider system improvement and develop and retain good links with other MATs, teaching schools and a wide range of stakeholders

Financial sustainability

Addressing concerns about MATs which have expanded too quickly, the guidance stresses the importance of Trusts having strong and sustainable finances. RSCs will want to see evidence that enables them to assess whether:

  • there is sufficient financial expertise to oversee the trust’s financial operations;
  • financial planning is integrated in to the trusts overall strategy for its school(s);
  • the trust’s vision remains deliverable and resilient to operational changes in income, such as changes in pupil numbers or characteristics or the implications of the introduction of a national funding formula. Scenario or sensitivity analysis should be used to evidence this;
  • there are robust contingency plans in place, with clear triggers for enacting these plans; and
  • the accounting officer has sufficient oversight and control of their finances, to enable them to achieve value for money and ensure propriety with public money.

In future, before agreeing that a MAT can expand the number of schools it runs, or a standalone academy can create or join a MAT, RSCs will assess whether:

  • the plans to grow the size of the trust are credible – and that the trust understands that while growth can bring about economies of scale, there are also costs associated with centralising functions. Where a trust’s plans are such that they want to remain small (e.g. below 1,200 pupils for primary trusts and 2,000 for mixed or secondary trusts), the RSC may recognise the financial limitations and be more cautious. They may ask to see more detailed plans, including how the trust’s senior leadership team will be funded from across the schools;
  • plans to secure efficiency savings through economies of scale are realistic and have been benchmarked against other trusts;
  • any central functions are properly costed and sustainable, and that there are clear plans that set out how these functions will be paid for, for example, through a charge or “top-slice” to individual schools within the trust;
  • these centrally delivered functions deliver value for money for constituent schools; and
  • the trust’s financial processes are sufficiently robust to withstand the increased responsibility of the trust, and in particularly the need to ensure propriety and value for money across a wider number of schools.

Risk Management

The guidance states that RSCs will take in to account what is known about the way successful academy trusts manage risk. In particular, they will test whether:

  • the trust has the capacity to fulfil the mandatory requirements set out in the Academies Financial Handbook especially if, having consulted with the Education Funding Agency (EFA), they know that it has not fulfilled those responsibilities in the past;
  • there are effective procedures in place to identify, monitor and mitigate at both school and trust level – risk management is not a box-ticking exercise;
  • its scheme of delegation makes clear what risks are managed at what level so no issues ‘fall between the gaps’;
  • the trust has a clear idea of how the way it manages risk may need to change as the trust grows, and has made a balanced assessment of the risks expansion and opportunities might pose to its existing schools;
  • the trust has access to appropriate due diligence expertise so that they can be confident the trust knows what it is taking on (both in terms of benefits and risks) when an additional school joins it; and
  • the trust has capacity to manage the estate for which they are responsible.

This guidance provides some welcome transparency and consistency around the ways RSC’s will take decisions on whether to allow Multi Academy Trusts to expand in future.

The NGA’s ‘Welcome to a Multi Academy Trust’

The National Governors Association’s long-awaited guide to governance in Multi Academy Trusts was published in November 2016. The 100 page booklet contains a useful overview of academies which will be a good resource for induction of new trustees. The guide is organised into a series of sections covering:

  • The legal role of trusteeship: introduction to governance in a Multi Academy Trust – the relationship between trustees and local governing bodies (or ‘academy committees”) and the importance of the Scheme of Delegation, the importance of recruiting for skills and carrying out regular performance evaluations.
  • The culture and ethos of the trustee board
  • What makes governance in a MAT different?
  • The business of the board- how trustee meetings should be organised, as well as meetings of members, the vital role of the Chair
  • How schools work: curriculum, assessment, safeguarding, complaints and exclusions
  • Knowing your schools: how to tell if your trust is doing well, chief executive reports, visiting school and performance data
  • Staffing: senior executive team, staffing structures and HR
  • Fiduciary functions: the importance of maintaining financial propriety, accounts and managing the budget and insurance
  • Relationships with external agencies: OFSTED, the Charity Commission, Department for Education, EFA and Regional Schools Commissioners
  • Growing the Trust: is there an optimum size for a MAT? Getting it right and routes to expansion
  • Glossary of education terminology

Priced at £12 for non-members and £6 for NGA members, the guide can be purchased here.

ASCL Guidance

The Association of School and College Leaders (ASCL) has also published three linked guidance notes, under the theme “Staying in Control of Your School’s Destiny”. The first instalment in October “Considering forming or joining a group of schools” examines the benefits of schools working in larger groups, with a particular emphasis on the implications of being part of Multi Academy Trust, the governance structures which are available and the factors which will be critical to success. A useful checklist is provided for schools considering their options for the future.

‘Joining a Multi Academy Trust’ published in November, outlines the process for seeking out a partner Multi Academy Trust to join. It stresses the importance of both partners carrying out due diligence on each other to ensure that their ethos, vision and values are aligned, and that both parties know what they will be taking on in terms of leadership, school performance, financial stability and liabilities. “Effective due diligence is essential in ensuring you find out as much as you possibly can about any MAT you are considering joining. MATs will also undertake due diligence into schools that are considering joining their trust”. Recognising the crucial importance due diligence when joining a Multi Academy Trust for busy education leaders, Elderflower Legal has launched a new fixed price product EduDiligence™ – find out more.

The third paper in the series ‘Forming a Multi Academy Trust’ sets out the process towards setting up a MAT, including reasons for forming your own Multi Academy Trust, how to choose the right partners, things to think about when scoping your new MAT, and how to undertake due diligence on your potential partners, as well as the importance of engaging and consulting with stakeholders before the decision is taken.

Some suggested key strategic questions for leaders of prospective MATs to ask themselves include:

  • What do you hope to achieve in the next three to five years?
  • What do you want for the children and young people in your schools?
  • How will you work together to achieve your aims?
  • Do you have a sense of how big you would like your MAT to grow? (Think in terms both of numbers of schools and numbers of pupils.)
  • Will this result in an organisation which is educationally and financially sustainable?
  • What is your attitude to the risks that new organisations have to take, such as creating leadership capacity to grow the organisation?
  • What capacity will you need to take on struggling schools? How will you make sure you don’t over-stretch yourselves?
  • What do you think will be your biggest challenges in your first few years, and how will your strategy mitigate these?
  • What central support do you plan to offer your schools? Where might this be located, and will all the schools in the proposed MAT be able to access it?

The ASCL guidance will be particularly helpful to schools beginning the journey of considering whether to form a new academy trust or join an existing Multi Academy Trust. The guidance can be accessed here.

 


Mark Johnson is an independent legal and governance specialist working with academy trusts, schools and not for profits to help them succeed. He serves as the company secretary of a MAT in Cheshire and independent audit committee member of a large MAT in Manchester. Get in touch today or find out more at elderflowerlegal.co.uk or call 01625 260577.

The information above is provided for general guidance only and is not a substitute for professional advice which may depend on your specific circumstances. If you would like to be kept up to date on more topics like this, then why not sign up to receive our regular newsletter.

Do you understand your responsibility for safeguarding children?

Do you understand your responsibility for safeguarding children?

Recent disturbing revelations about the horrific abuse suffered by young players in football, as well as the continuing wide-ranging inquiry into historical sex abuse have thrown the spotlight firmly on the role and responsibility of trustees, directors and managers of sports clubs, charities, social enterprises and businesses, as well as their front-line staff and individually regulated professionals, in detecting and preventing abuse and understanding their responsibility for safeguarding children.

It is becoming evident that adults within some organisations were aware of abuse taking place, or at least of concerns about members of staff or those associated with the organisation, but failed to act. In some cases, leaders within the organisation failed to investigate concerns thoroughly enough and, at the extreme, they may even have sought to hide or cover up the abuse.

Whether you are a trustee, director, officer, manager, paid professional or volunteer, if your club, association, charity or business works with or provides services to children and young people, you will have statutory responsibility for safeguarding children and their welfare. You must understand what your organisation’s and your personal responsibilities are.  If you fail to fulfil your responsibility for safeguarding children, you may open up your organisation and yourself to significant liability. This could take the form of a civil claim for damages for assault or negligence, based on a breach of a duty of care owed to children under your supervision, your organisation’s vicarious liability for the acts of its staff and volunteers; or a criminal prosecution could be brought for statutory offences related to failure to carry out Disclosure and Barring Service (DBS) checks on staff, failure to notify DBS of known incidents involving a member of staff,  health and safety breaches (including failure to maintain a safe system of working), or in extreme cases where there is a cover up, failure to report an arrestable offence, or conspiracy to pervert the course of justice. Directors and officers may be personally liable for certain offences alongside the organisation, if the offence has been committed with their ‘consent or connivance’. Involvement in such proceedings could be very costly, attract adverse media coverage and have a devastating impact on your reputation. Insurance policies may not assist, since most policies will typically exclude liability for deliberate acts of abuse committed by staff or volunteers.

The Safeguarding System

Whilst local authorities, through their children’s social care teams, play the lead role in safeguarding children and protecting them from harm, everyone who comes into contact with children and families has a role to play in protecting them. Children includes everyone under the age of 18.

‘Safeguarding’ the welfare of children is defined as:

  • protecting children from maltreatment;
  • preventing impairment of children’s health or development;
  • ensuring that children grow up in circumstances consistent with the provision of safe and effective care; and
  • taking action to enable all children to have the best outcomes.

Sections 10 and 11 of the Children Act 2004 place duties on a range of organisations and individuals to ensure their functions, and any services that they contract out to others, are discharged having regard to the need to safeguard and promote the welfare of children. Various other specific statutory duties also apply to other organisations working with children and families.

More generally, Article 3 of the United Nations Convention of the Rights of the Child, which is part of UK law, provides that all children have the right to have their welfare considered paramount in all decisions taken about them. Article 12 provides for the right of the child to be heard and Article 19 provides for the child’s right to be protected from abuse and neglect.

Safeguarding is everyone’s responsibility

Everyone who works with children – including teachers, GPs, nurses, midwives, health visitors, early years professionals, youth workers, police, NHS staff, nursery staff, crèche volunteers, scout leaders, holiday camp staff, voluntary and community organisations, sports club staff, freelance coaches – has a responsibility for keeping them safe. No single staff member can have a full picture of a child’s needs and circumstances and, if children and families are to receive the right help at the right time, everyone who comes into contact with children has a role to play in identifying concerns, sharing information and taking prompt action.

Organisations working with children must provide training for their staff on how to identify and respond early to the needs of all vulnerable children, including: unborn children; babies; older children; young carers; disabled children; and those who are in secure settings.  There is a particular need to be alert to the potential need for early help for a child who:

  • is disabled and has specific additional needs;
  • has special educational needs;
  • is a young carer;
  • is showing signs of engaging in anti-social or criminal behaviour;
  • is in a family circumstance presenting challenges for the child, such as drug or alcohol abuse, mental health problems and domestic violence;
  • has returned home to their family from care; or
  • is showing early signs of abuse and/or neglect.

Safeguarding issues can also manifest themselves via peer on peer abuse. This is could include bullying (including cyberbullying), involvement with gangs, gender based violence/sexual assaults and sexting. Specific duties apply to children thought be at risk of exposure to extremism or radicalisation under the ‘prevent’ duty. (A duty to refer children and young people who show active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs to the Channel programme); and certain professionals working in health, social care or education settings have a duty to report suspected female genital mutilation (FGM).

Staff must be trained to identify the symptoms and triggers of abuse, harm and neglect, to share that information and work together to provide children and young people with the help they need.

Section 11(4) of the Children Act 2004 requires each person or body to which the duty applies to have regard to any guidance given to them by the Secretary of State. The latest statutory guidance is entitled Working Together to Safeguard Children 2015 and is intended to provide a national framework within which agencies and professionals at local level – individually and jointly –work together to safeguard and promote the welfare of children.

Minimum Requirements

Organisations who work with children must have in place certain minimum arrangements that reflect the importance of safeguarding and promoting the welfare of children, including:

  • a clear line of accountability for the commissioning and/or delivery of services designed to safeguard and promote the welfare of children;
  • a senior board level lead who takes leadership responsibility for the organisation’s safeguarding arrangements;
  • a culture of listening to children and taking account of their wishes and feelings, both in individual decisions and the development of services;
  • Disclosures – staff should know what to do if a child tells them they are being abused or neglected. Staff should know how to manage the requirement to maintain an appropriate level of confidentiality, whilst at the same time liaising with relevant professionals such as the designated safeguarding lead and children’s social care. Staff should never promise a child that they will not tell anyone about an allegation, as this may ultimately not be in the best interests of the child;
  • clear whistleblowing procedures to notify senior management if there are concerns about the behaviour of colleagues, which are set out in staff training and codes of conduct. If internal channels fail, the NSPCC whistleblowing helpline on 0800 028 0285is available for staff who do not feel able to raise concerns regarding child protection failures internally. There should be a culture that enables issues about safeguarding and promoting the welfare of children to be addressed;
  • a Child Protection Policy and procedures which set out clearly how to spot the signs of abuse or harm, the processes for sharing information with other professionals and agencies and the circumstances in which concerns should be reported to a designated internal lead or a referral made to local authority children’s services here, or in urgent cases immediately to the Police and/or the NSPCC hotline on 0808 800 5000;
  • a designated lead for safeguarding (or, for health provider organisations, named professionals). Their role is to support other staff in their organisation to recognise the needs of children, including rescuing them from possible abuse or neglect. These roles should always be explicitly defined in job descriptions. The post holder should be given sufficient time, funding, supervision and support to fulfil their child welfare and safeguarding responsibilities effectively;
  • safe recruitment practices for individuals whom the organisation will permit to work regularly with children, including policies on when and how to check the identity of an applicant and obtain a criminal record check from the Disclosure and Barring Service and keep it up to date. More information is available on the DBS website. Certain employers can be liable to prosecution and a fine of up to £5,000 if they allow staff to have unsupervised access to children without undertaking the necessary check.
  • appropriate supervision and support for staff, including undertaking regular safeguarding training to keep up with developments in the law and best practice in what is a fast-changing environment. Employers are responsible for ensuring that their staff are competent to carry out their responsibilities for safeguarding, promoting the welfare of children and creating an environment where staff feel able to raise concerns and feel supported in their safeguarding role;
  • staff should be given a mandatory induction, which includes familiarisation with child protection responsibilities and procedures to be followed if anyone has any concerns about a child’s safety or welfare;
  • all post holders should have regular reviews of their own practice to ensure they improve over time; and
  • clear policies must be in place for dealing with allegations against people who work with children. Such policies should make a clear distinction between an allegation, a concern about the quality of care or services or a complaint. An allegation may relate to a person who works with children who has:
    • behaved in a way that has harmed a child, or may have harmed a child;
    • possibly committed a criminal offence against or related to a child; or
    • behaved towards a child or children in a way that indicates they may pose a risk of harm to children.
  • a staff behaviour policy (or code of conduct) which should among other things include – acceptable use of technologies, staff/children relationships and communications including the in appropriate use of social media.
  • Appropriate record-keeping and document retention policies concerning any allegations or referrals made.
  • The Safeguarding Vulnerable Groups Act 2006 (SVGA) places a legal duty on certain employers and ‘personnel suppliers’ to make a referral to the Disclosure and Barring Service of any person who has:
    • harmed or poses a risk of harm to a child or vulnerable adult;
    • satisfied the harm test; or
    • received a caution or conviction for a relevant offence.

This enables the central DBS record to be updated so that subsequent employers are aware of previous incidents. A regulated activity provider is an organisation or individual that is responsible for the management or control of ‘regulated activity’, paid or unpaid, or a person who makes arrangements for people to work in that activity. This will usually be an employer or a voluntary organisation. Clear-cut examples of a ‘regulated activity provider’ include:

  • providers of health and social care services providing care, supervision and advice to children
  • schools, nurseries, crèches and Further Education colleges that provide education to children
  • a specialist educational establishment that provides education to vulnerable groups, such as alternative education.

However, it could also extend to any form of teaching, training, instruction, care or supervision of children (always including any such activities involving overnight stays), as well as driving vehicles used for conveying children, or even moderating an online forum to which children have access. It is fair to say that the law is not very clear on precisely where the boundary is on regulated activities. In seeking to exempt some volunteers who have less frequent contact with children (less than once a week or less than four times in any 30 day period), or those who work ‘under the regular and day to day supervision of others’, it seems an unfortunate gap has been created which could be exploited by serial abusers, who could move on to a new setting without incidents having been recorded. A regulated activity provider can also be a person who simply manages volunteers in a regulated activity position, such as a scout leader or manager in a charitable organisation.

A ‘personnel supplier’ is an employment agency or business that makes arrangements with a person to find them employment. Or they may place that person with other employers. A personnel supplier can also be an educational institution which arranges for its students to undertake work experience placements as part of their studies.

The importance of sharing information and not turning a blind eye

Early sharing of information is often the key to providing effective early help where there are emerging problems. Indeed, sharing information can be essential to put in place effective child protection services. High profile Serious Case Reviews (SCRs) have shown how poor information sharing in the past has contributed to the deaths or serious injuries of children. Fears about sharing information cannot be allowed to stand in the way of the need to promote the welfare and protect the safety of children.

The seven golden rules to sharing information

  1. Remember that the Data Protection Act 1998 and the Human Rights Act are not absolute barriers to justified information sharing, but provide a framework to ensure that personal information about living individuals is shared appropriately.
  2. Be open and honest with the individual (and/or their family where appropriate) from the outset about why, what, how and with whom information will, or could be shared, and seek their agreement, unless it is unsafe or inappropriate to do so.
  3. Seek professional advice if you are in any doubt about sharing the information concerned, without disclosing the identity of the individual where possible.
  4. Share with the informed consent of the alleged victim where appropriate and, where possible, respect the wishes of those who do not consent to share confidential information. You may still share information without consent if, in your judgement, there is good reason to do so, such as where their safety may be at risk. You will need to base your judgement on the facts of the case. When you are sharing or requesting personal information from someone, be certain of the basis upon which you are doing so. Where you have consent, be mindful that an individual might not expect information to be shared.
  5. Consider safety and well-being: Base your information sharing decisions on considerations of the safety and well-being of the individual and others who may be affected by their actions.
  6. Necessary, proportionate, relevant, adequate, accurate, timely and secure: Ensure that the information you share is necessary for the purpose for which you are sharing it, is shared only with those individuals who need to have it, is accurate and up-to-date, is shared in a timely fashion, and is shared securely.
  7. Keep a record of your decision and the reasons for it – whether it is to share information or not. If you decide to share, then record what you have shared, with whom and for what purpose.

What happens if a referral is made?

Within one working day of a referral being received, a local authority social worker should make a decision about the type of response that is required and acknowledge receipt to the referrer. The referrer should actively chase up if they have not received a response. For children who are in need of immediate protection, action must be taken by the social worker, or the police or NSPCC if removal is required, as soon as possible after the referral has been made to local authority children’s social care.

Final thoughts

Trustees, directors and officers must take leadership responsibility for putting in place the right systems and policies for tackling abuse and protecting the welfare of children. The courts have been very willing to expand the boundaries of corporate responsibility for harm caused to children and it is likely that new specific criminal offences allowing individuals and organisations to be prosecuted for ‘failure to report’ concerns or a ‘failure to act’ may emerge in the wake of current inquiries. A Government consultation on introducing new offences closed on 13 October 2016. It is essential that organisations act now rather than face catastrophic consequences by getting it wrong.

 


Mark Johnson is a specialist legal and corporate governance consultant working with charities, social enterprises, academy trusts and service businesses. If you need help managing risk, reviewing policies and procedures or in reviewing any aspect of your governance, please get in touch today. Find out more at elderflowerlegal.co.uk or call 01625 260577.

The information above is provided for general guidance only and is not a substitute for professional advice which may depend on your specific circumstances. If you would like to be kept up to date on more topics like this, then why not sign up to receive our regular newsletter.

Brexit – What Next?

What are the business implications of Brexit?

After the shock and confusion which greeted the result of the referendum on 24 June, some limited clarity is beginning to emerge about the implications and the possible shape of the UK’s relationship with the European Union and its other 27 member states after the vote. It seems that we are in for a very long haul to sort out the fine detail over many years, a task which will consume huge amounts civil service resources, public spending and Parliamentary time (both nationally and in the devolved administrations) probably for the next five years. The implications will be far and wide for business, public services and the not for profit sector.

Pushing the start button on Brexit

Article 50 (2) of the Lisbon Treaty states:

‘In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.’

Nothing changes formally until the UK gives a notice under Article 50 of the Lisbon Treaty that it wishes to leave the European Union. Once that notice is served, there is a two year period to negotiate the terms of the UK’s exit. The exit agreement has to be approved (a) by a majority in the European Parliament (which interestingly will include our own MEPs – 73 out of 751 in total) and (b) by at least 15 out of the other 27 member states, representing at least 65% of the EU’s population. If no agreement is reached by the end of the two year period, then we simply leave with no transitional arrangements in place and EU laws, rights and obligations would cease to apply to the UK from that date (unless our Parliament opted to keep them alive) and no trade agreement with EU countries for the future. If that happened, the UK and EU would begin to impose tariffs on each others’ imports, increasing the price of goods and services. 48% of our exports go to EU countries and 54% of our imports come from there. The rights of millions of individuals and businesses would remain unresolved. The two year period can only be extended if all 27 member states agree to extend it.

It is self-evident that obtaining the agreement of at least 15 out of 27 nations and the EU Parliament to the terms of the exit agreement in such a short space of time will be a tall order. There is likely to be ‘horse trading’ between nations over issues which concern them most: for example, Denmark and Spain may be particularly concerned to block a wider deal unless they get what they want on fisheries policy, Germany may be particularly concerned with car exports and so on. MEPs are also likely to be very concerned to protect the rights of EU citizens living and working in the UK. Time will not be on the UK’s side and our negotiating position may not be particularly strong. Any politically motivated precipitous action to limit immigration by the UK could provoke retaliation and delay by the other countries, descending quickly into market disruption.

One critical area to get right will be the issue of acquired rights. An estimated 2 million UK citizens live and work in other EU countries, while around 3 million EU citizens live and work in the UK. Detailed arrangements will be necessary to cover rights acquired prior to the UK’s withdrawal. The arrangements would need to cover residence rights, rights to take up employment or self-employment, and rights to health care and social security. There will need to be agreement on the dates from which acquired rights would be recognised (the date of the referendum?), and transitional arrangements for those not qualifying for acquired rights.

Large areas of social and economic policy are underpinned by EU legislation. It would cause great legal and commercial uncertainty if all these laws simply disappeared overnight (take for example public procurement, Working Time and TUPE regulations, health and safety, environmental regulations, consumer protection, cross border divorce settlements and child custody arrangements, and intellectual property laws). Therefore, it is likely that most of them would have to be preserved in UK domestic law by ministers making orders under sweeping delegated powers to keep them in force until such time as a massive sifting and review process can take place over the coming years. Ministers are likely to have very extensive powers during this period which may not be fully amenable to Parliamentary scrutiny.

It is worth noting also that the agreement to limit ‘in work’ benefits to a 4 year qualifying period and capping child benefits negotiated with the EU in February has now fallen away as result of the referendum result, so in the short term we may actually see an increase in immigration and benefit payments. Under a previous deal newly arrived EU migrants are banned from claiming jobseeker’s allowance for three months. If they have not found a job within six months they can be required to leave. EU migrant workers in the UK who lose their job, through no fault of their own, are entitled to the same benefits as UK citizens, including jobseekers’ allowance and housing benefit, for six months.

It has been suggested that the terms of a new trade agreement could be negotiated in parallel with the exit agreement. Article 50(2) uses the words ‘taking account of the framework for its future relationship with the Union’ which would appear to lend some weight to this. However, the EU’s trade commissioner Cecilia Malmstrom stated on 30 June that negotiations on a new trade agreement cannot begin until the exit agreement is complete

[1]. Common sense might suggest that the two processes run in parallel, but in these negotiations the power is likely to lie with the EU bloc. The Trade Policy Committee of the European Council is likely to be a key player in the negotiations, along with the EU Commissioner for Trade and her staff who will be charged with leading these negotiations for the EU side.

Who has the power to press the button on Brexit?

A subsidiary question which has yet to be answered is who actually has the constitutional authority in the UK to serve the Article 50 notice? Article 50 says that a ‘Member State may decide to withdraw from the Union in accordance with its own constitutional requirements’. Will it be Theresa May exercising so-called prerogative powers, or does it require a vote in Parliament? Would it be politically wise for an unelected Prime Minister to trigger it without having parliamentary consent and approval when the country is so divided? The Government legal service is adamant that the power can be exercised by the Prime Minister, but many leading constitutional lawyers disagree, including 1,000 lawyers who presented a petition to Downing Street. In their view, UK citizens have acquired significant rights from EU law (including freedom of movement, social benefits, non-discrimination) which cannot be taken away without an Act of the UK Parliament.  At least two test cases on this point are being brought. The first is case brought by a Mr Deir Dos Santos (set for a hearing at the High Court on 13 October), and the second an action funded by several businesses (including the CEO of Zoopla, according to reports) and coordinated by the law firm Mishcon de Reya.

Can the Brexit conveyor belt be stopped once it’s started?

Again opinions seem to differ on this question, but the better view put forward by Professor Derrick Wyatt QC in evidence given to The European Union Committee, is that the U.K. can change its mind freely after invoking Article 50:

“There is nothing in the wording to say that you cannot. It is in accord with the general aims of the Treaties that people stay in rather than rush out of the exit door.. Analysis of the text suggests that you are entitled to change your mind[2].”

Leaving aside the question of who can start the process of withdrawal, it seems inevitable that a Parliamentary vote will be required on at least 3 things: (i) the repeal of the European Communities Act 1972 (the legislation which brought EU law into our domestic legal system and makes it enforceable in UK courts) (ii) the approval of the terms of the exit agreement and any transitional arrangements for UK citizens’ and businesses’ rights and obligations pending a new trade agreement (iii) approval of the terms of a new trade agreement.

What could the new relationship with the EU look like?

This is a complex multi-layered question which has political, economic and legal dimensions. On the political level, Brexiteers based their campaign on four key principles: (i) regaining sovereignty for the UK Parliament (i.e. British MPs should have the power to decide on laws and regulations and not be forced to comply with EU laws) (ii) free movement of migrant workers into the UK should be limited and (iii) the UK should cease making large financial contributions into EU coffers, so those funds could be redeployed for domestic priorities like the NHS (iv) the UK should be free to strike new free trade deals on a bilateral basis with other nations. In considering the possible scenarios which follow, it will be important to keep a keen eye on whether these objectives have actually been met – if not, one might ask why have we put ourselves through all this upheaval?

A unit was set up in the Cabinet Office under the leadership of the outgoing minister Oliver Letwin MP to consider all the options; this now forms part of David Davis’s Minister for Brexit portfolio. The unit currently has 43 employees plus a small number from the FCO and DFID who deal with trade policy. Trade negotiators will need to be hired in, we are told.

What models are being considered?

Economics tells us that we can benefit when goods and services are traded. Simply put, the principle of “comparative advantage” says that countries prosper first by taking advantage of their assets in order to concentrate on what they can produce best, and then by trading these products for products that other countries produce best. In other words, liberal trade policies — policies that allow the unrestricted flow of goods and services — sharpen competition, motivate innovation and breed success. They multiply the rewards that result from producing the best products, with the best design, at the best price.

However, the temptation to ward off the challenge of competitive imports is always present. Richer governments are more likely to yield to the siren call of protectionism, for short term political gain, through subsidies, complicated red tape, and hiding behind policy objectives such as environmental or consumer protection as an excuse to protect domestic producers. This is what the single market within the European Union was designed to eliminate – and it has done so quite successfully. Key areas of our economy which will be affected by the terms of any future deal are pharmaceuticals and specialist manufacturing industries, financial services, farmers and universities. It is worth keeping in mind that services make up 78% of our GDP, and around 10% of that is financial services (which account for 25% of our service exports). Worth bearing in mind also that financial services businesses account for around 12% of tax receipts which can be used to pay for public services (leaving aside the personal tax revenue generated from high earners in the City).

The new models on the table so far:

The ‘Norwegian’ model – European Economic Area (EEA) membership

This would involve remaining a member of European Economic Area. While this model scores highly in terms of maintaining market access, it falls short in terms of guaranteeing the UK a say over the rules (Norway has no veto at the European Council, no votes in the Council of Ministers and no representation in the European Parliament). It also does little for independence and sovereignty, given that most EU policy areas would continue to apply post Brexit. Crucially, this includes the free movement of people. However, the UK would gain the ability to negotiate its own trade deals with individual non-EU states (access to individual EU member states markets which account for 48% of our exports would still depend on reaching an agreement with the EU bloc as whole, since individual countries can’t do their own deals). This would also remove the UK from the Common Agricultural Policy (CAP), Common Fisheries Policy (CFP), EU-wide regional policy, and reduce its budget contribution. However, while guaranteeing access to the single market in services and goods, outside the customs union, access for our goods would be subject to complex rules of origin and Britain would still be subject to EU regulations on employment and financial services but with no formal ability to shape or influence them.

The ‘Swiss’ model

This model provides a mixed level of market access – it is relatively comprehensive in terms of goods but falls short in terms of access for services we sell, particularly for financial services (our exports of services to EU countries account for 40% of the total, and around a quarter of that is financial services). This model would give little say over the rules: Switzerland essentially has to mirror EU legislation in key areas where it wants to secure single market access. It does score more highly than the Norway/ EEA option in terms of gains in independence and sovereignty: several policy areas including social and employment law would return to the remit of the UK government. However, it still involves keeping free movement of people. The Swiss-EU bilateral deal, without the Common Agricultural Policy, EU fishing rules, EU-wide regional policy, and reduced financial contribution, offers more sovereignty and less EU regulation.

The ‘Turkey+’ model

The UK would continue to benefit from full access to the EU’s single market in goods by remaining in the customs union with the EU but the UK would still be bound by any external deals that the EU strikes in trade in goods without any formal way of shaping them. Crucially, the deal completely excludes services, agriculture and public procurement. A separate deal on services would be essential to maintain UK access to the single market in these sectors. It would remove the UK from EU social and employment regulation, the CAP, CFP and EU-wide regional policy.

The Canadian Model

The EU’s trade agreement with Canada (CETA) is very ambitious and took over 5 years to conclude. This agreement gradually eliminates tariffs on all industrial and most agricultural tariffs. It smooths out regulatory barriers, but unfortunately financial services are excluded. Any agreement along these lines would have to go much deeper with the UK and the EU would probably demand grater oversight and regulation.

‘Full break’ – the WTO option

If the UK left the EU without securing a version of the options above, the UK could fall back on its membership of the World Trade Organisation.  The WTO, based in Geneva has several international treaties covering trade in goods (GATT) and services (GATS). Its main function is to ensure that trade flows as smoothly, predictably and freely as possible. This would see some exports facing relatively high tariffs (e.g. 25% on car exports, 10% on car parts or 35% on dairy products) and market access for services would be very limited.

This model understandably scores low in terms of continued EU market access as it entails no preferential agreement covering the 50% of our trade which is with the EU. Some key goods exports would face high tariffs and accessing EU services markets would become much harder, particularly in financial services. Likewise it offers the UK no say over the rules, but may offers scope for gains in independence and would not involve complex negotiations with the EU.

The likelihood is that the UK would need to negotiate some form of bespoke arrangement. However, the fundamental trade-off is unavoidable: the fullest EU market access means accepting greater ‘obligations’ (be they on regulation, some form of contribution to the EU budget, or accepting the free movement of people)

Practical responses to current uncertainties

Businesses and organisations with exposure to European trade flows and EU regulations are the most likely to be affected by the changes. Consider the following areas for action in the short-term:

  • What do your supplier contracts say (if anything) about the risks associated with tariffs and non-tariff barriers and formalities- can you pass increased costs on to your supplier or customer or bail out completely if it becomes uneconomic?
  • What do your contracts say about the allocation of risks of changes in law or regulation- can you trigger any price adjustment mechanisms?
  • Consider the impact of any future restrictions on freedom of movement for any of your workforce from other EU countries – consider whether their position could be regularised e.g by applying for visas or permanent residence? What practical steps could you take to reassure them in the short term? Hospitality, healthcare, construction and recruitment sectors are likely to be particularly hit.
  • Do you rely on any EU grant funding programmes which could be affected by the changes?
  • Review supply chains to assess how they may be affected by the introudction of tariffs or loss of labour from EU countries.
  • Consider whether opening a presence in another EU member state may help preserve your access to the Single Market?
  • EU law continues to apply in full in the short term so be alert to any actions by competitors or suppliers which attempts to deviate from it, but equally ensure you respect the rules as well.
  • Now more than ever, keep an eye on your markets and be alert to changes, review your liquidity and cash flow and your cost base so you are nimble enough to cope with challenging economic conditions

Conclusions

Pre-referendum, most economists agreed that as a result of the decision to leave the EU we could expect to see in the short to medium term impacts on the economy:

  • Lower real wages
  • A lower value of the pound
  • Higher government borrowing, lower public spending or higher taxes
  • In the short term, higher unemployment

Without doubt leaving the EU means a degree of economic dislocation with the UK’s largest trade partner and therefore an economic cost, estimated to be a loss in the range of 0.5% to 1.5% of GDP over the medium-term, depending on the exact terms of the exit agreement with the EU. It may be possible for the UK to get back into positive growth over the long-term, but only if the UK takes a ultra-liberal approach to trade, immigration and deregulation. Free trade agreements inevitably involve opening up more domestic markets to greater competition from overseas (in particular the US and Asia) as a quid pro quo for access to their markets, and we may now see a new wave of immigration, this time increasing competition for skilled jobs. One thing that is clear is that Brexit cannot be all things to all people. As I said in an earlier post pre-referendum –it could be a case of ‘be careful what you wish for’. The costs and distraction of all this could detract significantly from other pressing national priorities- such as increasing investment in manufacturing capacity, improving infrastructure and finding solutions to the ticking time-bomb of health and social care costs. If the Brexit deal does not achieve the four key objectives set out above, it could be the greatest Pyrrhic victory ever. Without doubt, we are entering a very challenging period.

[1] http://www.bbc.co.uk/news/uk-politics-eu-referendum-36678222

[2] http://www.publications.parliament.uk/pa/ld201516/ldselect/ldeucom/138/138.pdf


 

Mark Johnson is a solicitor, chartered company secretary and trusted advisor to SME’s, not for profits and public bodies. If you would like to discuss implications of Brexit, please get in touch at elderflowerlegal.co.uk.

If you would like to be kept up to date on more topics like this, sign up to receive our regular newsletter.

Public Law Pitfalls for Academies – Part II

Inadequate Consultation & Other Public Law Pitfalls for Academies

In Part 1 of this post I outlined the public law pitfalls for academies when they exercise their public functions. One of the ways in which academy trusts can ensure they comply is to conduct a fair consultation process before taking major decisions with a public character..

 The crucial importance of consultation

The duty to consult before taking major decisions may be expressly required by specific legislation, such as section 5 of the Academies Act 2010 (where a school is proposing to convert), or Section 10 (where a free school is being proposed), or it may be implied as a matter of good administrative practice. Either way, the decision-maker will expose itself to risk of a claim for a flawed consultation process if it doesn’t follow the correct procedures.  As well as being a legal duty in itself, in some circumstances, the running of a consultation exercise may be seen as a way to improve transparency and enhance the quality of decision-making. Although it may be an administrative burden with some expense involved, it may help to fend off other types of challenges later because it will elicit information and relevant facts that the decision-maker needs to be aware of before proceeding, and will help to show that the decision maker made proper enquiries (for example, around the equalities impact of any proposals, such as the effects on ethnic minorities or disabled persons).

The sort of contentious proposals on which a consultation might be required include choosing or changing a sponsor, joining or leaving a Multi Academy Trust, changing admissions arrangements, changes to SEN provision, or opening a Sixth Form.

Golden rules for a fair and bullet-proof consultation

To avoid the risk of challenge to the consultation exercise itself, or to the subsequent decision which is based on it, the consultation must always be carried out fairly. What is fair will depend on the particular circumstances and the nature of the proposals under consideration. It will always be sensible for decision-makers to take more care if the proposals are likely to be very controversial. If the statute or Government guidance lays down specific requirements for the consultation, then these must be adhered to, but otherwise there will be a broad discretion to design the process as they see fit. The Courts have laid down the following key principles known as the Gunning principles

[1] (named after the claimant in that case), which must always be followed:

  • Consultation must take place when the proposal is still at a formative stage – the decision-maker cannot consult on a decision that has already been made – otherwise the outcome will have been pre-determined. The wording of section 5 of the Academies Act (the duty to consult before creating an academy) gave rise to controversy when anti-academy campaigners sought to argue that a consultation conducted by a Governing Body once the they had already applied to the Secretary of State for an academy order had effectively been pre-determined. Fortunately, the section makes clear that consultation can take place “before or after an Academy order, or an application for an Academy order”. However, the application for an academy order (which is a pre-condition to obtaining the £25k grant funding for set up costs) requires the school to confirm that the Governing Body has passed a resolution in favour of conversion – passing such a resolution before consultation has taken place could be problematic! The resolution may have to be carefully worded to state simply that the Governing Body has resolved to ‘explore the possibility of moving to academy status’. Controversially, the new Education and Adoption Act has removed the requirement to consult when the Secretary of State decides to make an order in relation to an ‘inadequate’ or ‘coasting’ school[2]. Careful choice of words in public meetings and written communications can also be very important. If the trust board is minded to pursue a particular option, it should take care to say that and talk in terms of what might happen if the decision goes ahead, and not give the impression that the issue is a fait accompli. If there is really only one viable option, the trust can state this and provide reasons as to why this is the case.
  • Sufficient reasons must be put forward for the proposal to allow for intelligent consideration and response. Consultees need to be made aware of the basis on which a proposal for consultation has been put forward. They need to be aware of the criteria which will be used in considering the proposals, and what factors will be considered decisive. Equally, the information in the consultation document must not be inaccurate or misleading so as to mislead consultees. It is particularly important when dealing with complex issues to provide access to sufficient background information to educate and inform consultees. The document should set out what is proposed, what the options are and why these changes are needed. In the case of new academy proposals, it would be prudent to provide information about the background to academies, their supposed benefits and governance arrangements, the extra money and resources which might be available, the extra risks and responsibilities involved, the impact on teachers, pupils and other staff, impact on other schools. Be upfront about the reasons for a proposal – in the current climate the driver for change will often be mainly financial – if that is the case say so – don’t be tempted to hide behind other more superficially palatable reasons, because that may risk the exercise being struck down as unlawful.
  • Adequate time must be given for consideration and response. Sometimes the statute may prescribe the time period, otherwise it may be left to the decision maker. If the decision maker has already adopted a documented policy on time periods, it will be expected to adhere to it, unless there are good reasons to depart from it. In the context of schools, a minimum of six weeks would be a reasonable time period, however at least some of the period should be during term time when parents, pupils and staff are on site. DfE Guidance on making significant changes to an existing academy trust[3] recommends a period of four weeks and the Admissions Code requires a minimum of six weeks for changes to admission arrangements. If the decision needs to be taken urgently, the Courts may be tolerant of a shorter time period – though less so if the circumstances are of the academy’s own making.
  • The product of the consultation must be conscientiously taken into account. If the decision maker does not properly consider the responses, then it can be accused of having already made up its mind or having failed to take into account a relevant consideration. The decision maker does not have to personally take into account every response – it can rely on a summary produced by officers, as long as it is comprehensive and accurate. It is important make sure there is a paper-trail showing that this was the case.

Who should be consulted?

A key question is to identify the audience of persons who should be consulted. The safest option would be to cast the net wide and, depending on the nature of the proposal, consult with parents, pupils, staff, other affected schools, (e.g. feeder primary schools), nurseries or children’s centres on site, any diocesan or religious authority for the school, FE colleges, local community, local Admissions Forum, representatives of key stakeholders such as the local authority, the EFA, Regional Schools Commissioners, authorised representatives of trade unions and professional bodies. The consultation document should set out the background to the proposals and ask a series of questions and invite consultees to make any other observations they may wish to include. The information should be readily available – post it on websites and make hard copies available to pick up at the school. Consider issuing press releases to local papers. Meetings should be held for parents, pupils and staff and questions recorded and published as part of FAQs document on the website for those that could not attend. Useful guidance about the conduct of public consultations has been published by the Cabinet Office.

What if the proposal changes?

Is the decision-maker required to re-consult if it wants to adjust its original proposals or if circumstances have changed since the consultation began? The Courts have taken the view that fresh consultation is only required where there is a “fundamental difference between the proposals consulted on and those which the consulting party subsequently wishes to adopt”[4]. A particular example of this might be if the site for a new or expanded school has not yet been identified at the time consultation takes place. The consultation can proceed with new information about site information being provided as it becomes available – although obviously it may then be necessary to extend the time for responses on that aspect.

Whilst there are as yet no reported cases of judicial review of governing bodies in respect of academy proposals (as opposed to admissions or SEN issues), solicitors’ letters threatening litigation and the attendant costs seems to have been enough to delay conversions at Tyndale School in Islington, where the objectors alleged that the governing body failed to carry out an assessment of the impact changing to academy status would have on the wider community, especially in terms of equalities – how it would affect people of different religions, gender and disabilities. A similar threat of proceedings against the governing body based on flawed consultation and inaccurate information being presented to parents also delayed conversion at Tidemill School in Deptford.  It is also noteworthy that the governing body’s failure to consult properly can later be used as grounds to attack the Secretary of State’s decision to approve academy arrangements (even though it is not actually her obligation). This was accepted by the Court in proceedings to challenge the academisation of Downhills School in Haringey[5] (although the challenge ultimately failed on the basis that the local authority had consistently failed to raise standards and there was a pressing need to intervene, the judge accepted an argument that, if a credible alternative strategy had been put forward by parents to improve the school whilst remaining under local authority control, the decision maker would have been obliged to consider it).

Final thoughts

The complex patchwork of legal rules and duties applying to academy trusts is derived from many sources – including education law, company law and charity law. Given the hybrid nature of academy trusts and their special status as private corporations delivering publicly funded services, amid the multiple layers of regulation, it easy for trustees and governors to overlook the public law pitfalls for academies, the most important of which is arguably the duty to properly consult before taking major decisions which affect the school and wider community. As wholesale academisation gathers momentum, we may see more use being made of public law challenges to check and hold to account the decision-making of academy trusts.


[1] R v Brent London Borough Council, ex parte Gunning, (1985) 84 LGR 168

[2] Section 8 of the Education and Adoption Act 2016

[3] Making Significant Changes to an Open Academy,  DfE 1 March 2016

[4] Silber J in R (Smith) v East Kent Hospital  NHS Trust 2002 EWHC 2640 45ff

[5] R (Moyse) v Secretary of State for Education  [2012] EWHC 2758 (Admin)


Mark Johnson is a highly experienced independent solicitor & chartered company secretary helping schools and academies with conversions, creation of MATs, legal and governance issues. We can help your academy to flourish. Find out more at elderflowerlegal.co.uk.

If you would like to be kept up to date on more topics like this, sign up to receive our regular newsletter.

Public Law Pitfalls for Academies

Inadequate Consultation & Other Public Law Pitfalls for Academies

Despite the rhetoric about autonomy, independence from state control and privatisation, academy trusts are still treated as quasi-public bodies for some purposes in the eyes of the law. Consequently, they are subject to various public law duties in the way they carry out their public functions. Unlike their specific duties derived from legislation such as the Academies Act 2010, Charities Act 2011 or Companies Act 2006, many of these duties are not written down in black and white. Instead, they are derived from principles of administrative law developed by the Courts over many decades. This lack of clarity means it can be difficult for trustees and governors to understand precisely what the law requires in this area. This is a developing area of the law in the context of academy trusts, particularly as the prospect of more enforced academisation polarises views and seems likely to encourage more protest and challenge to the activities of academy trusts. It is important that trustees and governors understand what the public law pitfalls for academies are to avoid falling into the traps. In this series of posts I will be examining what these duties are and how to stay compliant.

What is public law?

Public law is a body of long-established rules and principles used to check and challenge the decisions and policies of public and quasi-public bodies (such as housing associations or NHS trusts). The Courts have found that academy trusts are subject to public law because (a) they are carrying out functions of public nature (b) they derive their legal existence from statutory powers vested in the Secretary of State and (c) they are funded mainly from state resources. Consequently, their decisions and actions may be susceptible to judicial review in the Administrative Court. The courts will not intervene lightly in decisions of public and quasi-public bodies. Claims for judicial review follow a specific procedure – there is a strict time limit of 3 months from the date of decision being challenged (and the claimant must act promptly). The claimant must comply with the pre-action protocol before issuing a claim. He must obtain permission from the court to bring the claim. A judge will determine if there is an arguable case at a preliminary hearing, usually based on written evidence alone at this stage. If the court grants permission to proceed, the second stage of the proceedings will then go on to consider the merits of the claim. If the claim is successful the court can make various orders – it can strike down the public body’s decision, it can issue a declaration that the decision is wrong and require the decision-maker to re-consider the issue. Although pursuing a case is likely to require a budget of several thousand pounds, which can be a significant deterrent, legal aid may be available for certain types of claims if the claimant is in receipt of means-tested benefits, a very low income or is a child, and it is becoming increasingly common for well-organised action groups to crowd-fund their case. Litigants may also protect themselves against the risk of having to pay the winning side’s costs if they lose by applying for a Protective Costs Order.

Public law duties

Public bodies must act within their powers and in a fair and reasonable way when dealing with service users and the public. In the context of academies, that means duties towards parents, pupils staff and the wider community. Public bodies must reach fair, rational and reasonable decisions about the rights and entitlements of their service users. If they don’t comply, their decisions can be subject to complaints, challenges before regulators (such as OFSTED or OFQUAL) adjudicators (e.g. the Schools Adjudicator for admission issues), the Education Funding Agency and ultimately court claims for judicial review. Judicial review proceedings are a way of challenging the decisions of public bodies on the basis that the decision-making process adopted by them is so seriously flawed as to be unlawful.

The principle that academy trusts are subject to public law duties and that their decisions can be challenged by a claim for judicial review was established in a case concerning a challenge to the admission arrangements of a City Technology College (the precursors to academy trusts) in South East London in 1995

[1]. Admission arrangements at the Harris Academy in Crystal Palace were found to be capable of challenge by way of judicial review in a case in 2011.[2] Whilst it is clear that the education functions of an academy trust are amenable to judicial review, it is less clear whether its other functions, such as delivery of non-statutory services or decisions to enter into commercial contracts could be subject to review in this way. In a challenge to the decision of Camden Council to establish a new academy in 2009, the claimant Mrs Chandler argued that the decision to select a new academy sponsor should have been subject to an open competition.  Although the challenge failed on the merits, the Court of Appeal acknowledged that an ordinary citizen might, in appropriate cases, have a public law claim for failure of a public body to comply with the public procurement rules (which requires contracts to be advertised and open to competition)[3].

Sound decision-making is vital

In the context of academies, the decisions which have a public law aspect are likely to be taken by the academy trust board, or occasionally the Chief Executive or Executive Headteacher of a MAT, acting under delegated powers. The usual line of attack against decisions or actions by a public body is to allege one or more of the following defects in the decision:

  • Irrationality or unreasonableness– the decision is so outrageous or absurd that no reasonable person would have made it, or alternatively the decision-maker has failed to ask itself the right question, failed to make proper enquiry into the facts, has not taken into account relevant factors, or has taken into account irrelevant considerations. Linked to this is a growing doctrine of proportionality: the action taken by a public body must be appropriate, necessary, and not go beyond what is necessary to achieve the objective[4]. Heavy-handed decisions which deprive someone of a fundamental right are particularly susceptible to review under this principle.
  • Illegality – the decision-maker must understand the law which regulates them. A public body may have acted outside of its powers (known as ‘ultra vires’) – those powers may be set out in legislation or in the governing document (Articles of Association); the body has failed to comply with a duty set out in a particular statute e.g. the requirement to make SEN provision under the Children and Families Act 2014; the body has unlawfully fettered its discretion – e.g. by adopting a blanket policy on an issue without considering the merits of each individual case; the body has failed to provide adequate reasons for its decision; the decision maker has unlawfully delegated its decision-making to another party when it should have taken the decision itself (for example, an unlawful scheme of delegation).
  • Procedural impropriety – this a defect in the process of decision-making, which breaches the rules of fairness and natural justice: this could include bias from the decision-maker because of an obvious conflict of interest, failure to give someone a ‘fair hearing’ to put forward their arguments, acting inconsistently in two or more similar situations, breach of a legitimate expectation (express or implicit promises made to people, which the decision maker then goes back on; or failure to consult before making an important decision (see more on this later).
  • Breach of Human Rights – failure to respect the European Convention Rights brought into UK law by the Human Rights Act 1998. It has become increasingly common for these grounds to be added into a claim, such as the right not to be discriminated against, right to freedom of expression, right to education, right to private and family life. In this context, the courts often apply a proportionality test – i.e. they have to weigh up the interests of the wider community and the legitimate aims of the state as against the protection of an individual’s rights and interests.

All this points to the need to think about the public law implications of decisions, policies and major changes implemented by an academy trust to avoid public law pitfalls. Examples of the kind of issues which could become contentious include, changing admission arrangements, a decision to merge or amalgamate schools, changes to SEN provision, uniform policies, school meals arrangements.

An interesting question which has yet to come before the courts is whether parents and pupils might use judicial review proceedings to force an academy trust to comply with certain provisions in their Funding Agreement which might be capable of conferring rights on third parties (for example, Clause 2.10 which requires the academy to be ‘all ability and inclusive’, to make available places for children with SEN (Annex para 9), to provide free milk (2.16) and to provide minimum pension benefits for staff (2.7). During debates on the Academies Bill in 2010 the Minister Lord Hill said “I am happy to confirm that parents have always had the power to seek judicial review against either the academy trust for failing to follow its contractual obligations [under the Funding Agreement] or the Secretary of State for failing to ensure that the academy complies with its obligations under the Funding Agreement[5]”. We may in future see claims based on the premise that pupils and parents have a ‘legitimate expectation’ that the terms of the Funding Agreement will be complied with.

Next time we will consider the crucial importance of conducting a fair consultation process when considering new or significant changes to academy arrangements.


[1] R v Governors of Haberdashers’ Askes Hatcham College Trust ex parte T [1995] ELR 351

[2] R (Omotosho) v Harris Academy Crystal Palace 2011 EWHC 3350, per Singh J at para 6

[3] R (Chandler) v London Borough of Camden 2009 EWCA Civ 1011 at para 77

[4] See for example, Pham v Home Secretary [2015] UKSC 19, per Lord Mance at para 96.

[5] Hansard 7 July 2010 Vol 720


Mark Johnson is a highly experienced independent solicitor & chartered company secretary helping schools and academies with conversions, creation of MATs, legal and governance issues. We can help your academy to flourish. Find out more at elderflowerlegal.co.uk.

If you would like to be kept up to date on more topics like this, sign up to receive our regular newsletter.

Go to Top