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