Too often the consultation on Academy conversion that schools conduct is seriously flawed. If your school is considering Academy status it is important to insist on full and proper consultation. This post considers the following;
- How should the consultation be conducted?
- The laws that govern consultation
- What should Academy consultation involve – as a legal minimum?
- What information should be provided to consultees – as a legal minimum?
- The consultation timeline
- What can you do to ensure proper consultation at your school?
- Further action
1. HOW SHOULD THE CONSULTATION BE CONDUCTED?
A consultation should be based on full and balanced information and should be conducted with an open mind. The consultees should be provided with all the relevant information to consider and should have the opportunity to hear the arguments for as well as the arguments against. Consultees should be able to ask questions and express opinions. Questions asked should be answered fully and in good time and the answers published so that other consultees can benefit from the new information. The school should make every effort to engage with the maximum number of people and to facilitate dialogue.
The National Governors Association advice to members is as follows;
‘It is for the school to decide how to carry out the consultation process, but the
following should be considered:
- Make sure information is readily available – if you have a website post it there, if not make sure information is sent out to parents and available to pick up at the school
- Hold meetings for parents/pupils and staff – to provide information, but also to enable them to give their views and ask questions. Make sure the answers to those questions are published
- You may wish to consider issuing a consultation questionnaire
- You may wish to consider holding a ballot of parents to determine whether to go ahead.
We also suggest that the governing body should enable supporters and opponents of the proposal to circulate relevant materials to other consultees.‘
2. THE LAWS THAT GOVERN CONSULTATION
The 2010 Academies Act is woefully deficient in its requirements for consultation, and many schools do no more than the minimum required by this act. Fortunately for stakeholders however, there are other laws that govern consultation (for example the 2010 Equalities Act) and schools that do not act within these laws could be legally challenged in the form of a Judicial Review.
3. WHAT SHOULD ACADEMY CONSULTATION INVOLVE – AS A LEGAL MINIMUM?
The lawyer David Wolfe on his excellent blog ‘A can of worms’ says the following about the legal requirements of consultation;
The law lays down some important requirements whenever a public body consults (i.e. they do not just apply to academy consultations). As for what they might mean in the context of consultation about an academy conversion:
- it is hard to see how an academy could lawfully not consult parents (and potentially pupils) at the school already; also at feeder schools; and indeed those feeder schools themselves; also other, potentially affected, schools in the area
- those consultees need to be given enough information about what is being proposed to understand why it is being proposed – why do the governors want the school to become an academy?
- they need to be honest about their reasons; and provide proper explanations for them
- those explanations need to withstand scrutiny – they cannot be nonsense
- the information needs to be in a form which people can understand – not technical gibberish
- people need to be given enough time to digest it; and the opportunity to ask questions and for more information
- if something changes in the course of the consultation, then the consultation may need to be extended for the fresh information to be provided to everyone
- the governors need to be open minded on the question of whether to go ahead when they consider consultation responses.
4. WHAT INFORMATION SHOULD BE PROVIDED TO CONSULTEES – AS A LEGAL MINIMUM?
The lawyer David Wolfe lists on his blog the following information that should as a legal minimum be provided to consultees;
- the benefits of converting
- the disadvantages of converting
- the extra money, if any, the school would get, and on what basis
- the extra responsibilities and costs the school would take on
- the risks
- the ‘freedoms’ (but asking themselves whether the things they might actually want to do with those freedoms are things they cannot do already)
- the impact on pupils
- the impact on teachers
- the impact on other staff
- the impact on the community
- the impact on other schools
5. THE CONSULTATION TIMELINE
The DfE guidance to schools suggests that it is acceptable to take a resolution to convert in parallel with conducting a consultation. But this means schools will be consulting on a decision already made, which is illegal. There have been several cases of schools taking a resolution and applying to convert before they have even begun the consultation process. They do this in order to obtain the £25k conversion grant at an early stage. Typically these schools incorrectly inform parents that the DfE provides the grant for ‘consultation’ and that consultation cannot take place until the grant has been obtained. This is false. The DfE is clear in its guidance for schools becoming academies that the £25k grant is for conversion and can only be obtained once a school has submitted the application to convert. This requires a resolution to have been taken and is considered by the DfE to represent a firm commitment to convert.
The National Governors Association advises the following;
‘The NGA is of the view that consultation should take place at an early stage of the
process before governing bodies have applied for academy status, and that no
governing body should submit an application to the DfE unless and until they have
consulted their key stakeholders (parents, pupils, staff, local authorities, or other local
schools). Conversion to academy status is a significant step; it means moving
accountability away from the local authority to the Secretary of State and potentially
fundamentally changing the structure of the governing body. A decision on such a
step should not be done without considering the views of those likely to be affected.‘
The consultation timeline as suggested by the NGA is as follows;
1 – Establish a working group to gather information about whether or not to become an Academy. Inform parents what you are doing.and why.
2 – Governing Body considers all the information and decide whether it thinks the school should convert to Academy Status. If no, inform parents of the reasons why. If yes …
3 – Share the information gathered with key stakeholders and undertake a formal consultation to obtain their views on whether it should convert. ‘If the governing body is convinced this is the right move and has the evidence to back that decision up then it should be able to put together a strong case to stakeholders.’
4 – Once the consultation period has ended and the responses collated, then the
governing body should consider all the evidence and take the final decision
about whether to apply to convert.
6. WHAT CAN YOU DO TO ENSURE PROPER CONSULTATION AT YOUR SCHOOL?
Write to the Headteacher, the Chair of Governors and each individual governor asking that they;
- Abide by the NGA advice on consultation.
- Do not submit an application or take a resolution to convert before consultation has been completed and the views of stakeholders taken into consideration.
- Consult the whole school community including staff, parents, pupils, prospective parents and feeder schools.
- Ensure maximum engagement in the process by publishing full details of the consultation process at the outset, using a variety of methods to contact consultees and of ways for consultees to participate.
- Provide easily accessible, full and balanced information on which to base the consultation at the outset so consultees can ask questions and express informed opinions.
- Publish the answers to questions asked by consultees.
- Provide opportunities for consultees to hear the pros and the cons of academy conversion in an open forum with speakers for and against.
- Conduct a parent ballot or a parent questionnaire (but if a questionnaire is issued it is important to challenge the use of leading questions, for example ”Do you agree with [Academy Sponsor’s] belief in good discipline to ensure excellent exam results?’ If people are being asked questions such as these which suggest a ‘correct’ and obvious answer, the questionnaire is meaningless).
- Ask that teachers and support staff be balloted also and the results published for other consultees.
- Follow the advice in the DfE guide ‘Pupil Participation Guidance: Working Together – Giving Children and Young People a Say’ when consulting pupils.
If consultation has already finished or is part-way through and you are not satisfied that it has been conducted properly, alert the Governing Body to the legal requirements of consultation and insist that it be re-run properly.
If you think your school may already have submitted an application to convert, make a freedom of information request to the DfE here asking if the school has made an application and asking for copies of the application and all supporting documents.
7. FURTHER ACTION
The experience of other school communities has been that just asking for these things is usually not enough. If you don’t get a satisfactory response to your requests you may need to take further action, for example by starting a petition, forming a campaign. group, alerting councillors and MPs of your concerns, or making a legal challenge. Many schools have already converted following sham consultations. If you don’t do something to stop this happening at your school, don’t assume that somebody else will.