All change?

Education is always a key election battleground and this year’s was no different. Barney Northover and Chloe Brunton assess the impact of coalition Government policy on public benefit, academies and free schools

The Conservative Party’s manifesto included pledges to “[draw] on the experience of the Swedish school reforms and the charter school movement in the United States” and to give “all existing schools… the chance to achieve Academy status”. The Liberal Democrats’ proposals included the concept of sponsor-managed schools (albeit accountable to the local authority rather than to Whitehall) and freedom to innovate, as well as the proposed abolition of university fees.

Although none of the main parties made any manifesto pledges for independent schools specifically, proposed changes to the state-funded sector are now being put into practice by the coalition Government: but what is the likely indirect impact on the independent schools sector?

Academies
The Academies Act 2010 received Royal Assent just moments before Parliament went into summer recess, amid a whirlwind of controversy over the level of scrutiny applied to the Bill.

The new Act opens up the programme to primary schools, special schools and grammar schools and introduces a streamlined process of conversion. The Act itself does not make a distinction between schools that are high-performing and those that are not. However, Michael Gove MP wrote to every state school that was judged as being “outstanding” in its most recent Ofsted inspection to invite them to be among the first wave of converters. The DfE is currently only accepting applications for conversion from such schools. About 1,900 schools registered an interest (1,000 of them being “outstanding”); 153 applied by the June deadline for authority to convert in September 2010, but by the time this article is published only a handful are likely to have completed their conversion. Many more are likely to follow throughout 2010 and 2011. Of course, academies are not a new concept.

Under Labour, the programme was meant to improve underperforming schools primarily in areas of deprivation, and in practice most open academies offer little competition to independent schools. The aim is for new academies to have greater autonomy and freedom to innovate than the predecessor schools.

The Government hopes that greater freedoms will enable academies to improve and vary the offering they provide, but “outstanding” schools are likely to be already oversubscribed and there is no provision for increasing capacity. Academies are not permitted to become selective unless the predecessor school was a selective grammar school. Increased competition should therefore not be too much of a worry for independent schools.

There will not be additional funding overall, but the portion of a school’s funding that, for a maintained school, is given to the local authority will be given directly to the academy, which will be able either to buy back local authority services or buy them from elsewhere. This may present opportunities for some well-resourced independent schools to form commercial relationships with academies and provide services to them. An example might be groundsmen’s services for maintaining sports fields.

Now that primary schools can become academies, independent schools with these state primaries among their feeder schools could develop a closer relationship with them, or even become their educational sponsor and take a role in their governance.

Free schools
Drawing on the experiences of Sweden and the US, the free-school model is aimed at allowing independent providers the opportunity to establish all-ability state-funded schools in response to parental demand. The DfE is inviting charities, universities, businesses, educational groups, teachers and groups of parents to promote new schools and it is expected that the first of these schools will be established for September 2011.

A free school will be subject to the same legal requirements as academies, including being established as exempt charities and not-for-profit. There may be opportunities, however, for independent schools and commercial organisations to provide management or other services to these new schools.

Where independent schools convert to academies, they will also be referred to as “free schools”. Although this would be a huge change for most independent schools, where there has been a collapse in the demand for places, joining the state sector may be the only way to guarantee the survival of the school.

Public benefit
Despite the hopes of some in the independent schools sector, public benefit did not get a mention in the Conservative Party’s manifesto. The future of how the public benefit test is applied to independent schools remains in the hands of the Charity Commission, which looks set to keep its independence from Government. The ISC has been seeking permission to apply for judicial review of the Commission’s guidance since February 2010. At the time of writing, it had not heard whether that application has been granted.

In July, however, the Commission published an update on its public benefit work. This confirms that the two independent schools that were previously found not to have met the public benefit requirement, St Anselm’s School and Highfield Priory School, have now passed the test. Perhaps unsurprisingly, both schools pledged to increase the level of their bursary provision. Although St Anselm’s also agreed to offer more non-means-tested assistance and make some changes to the “other opportunities to benefit” it provides to local children, it is still not clear what weight was given to these by the Commission.

The lack of significant change in the Commission’s approach will come as a disappointment to many in the sector, particularly following Gove’s assertions last year that a Conservative Government would enter into “immediate talks” with the Commission, asking it to “soften its line on reviewing independent schools’ charitable status”.

However, there have been no legislative proposals for reform from the new coalition Government. Despite suggestions in the press that Gove ordered DfE officials to talk to the Commission about giving schools more credit for opportunities to benefit other than means-tested bursaries, the Commission confirmed in June that there had been no contact from the DfE in this regard.

It seems that those schools that are hoping for a change to the law will need to wait longer, but should in the meantime review their provision of means-tested bursaries.

Barney Northover is a partner and Chloe Brunton is a senior staff solicitor at Veale Wasbrough Vizards. Barney can be contacted on bnorthover@vwv.co.uk or 0117 314 5395; Chloe can be contacted on cbrunton@vwv.co.uk or 0117 314 5301. 

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