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.

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