Free Schools

On 18 June, Michael Gove finally announced the much heralded process under which parents, teachers and charities will be able to set up new schools – Free Schools.  In launching this new policy the government has borrowed heavily from Free Schools in Sweden and Charter Schools in the US.  Free Schools are independent state schools run by teachers not bureaucrats or politicians and accountable to parents.  While there is some way to go before the first Free School emerges the outline of the new policy is now clear.

Process

The government envisages a four stage process in opening Free Schools:

  • Stage 1 (Preparation) – those wishing to set up new schools should contact the New Schools Network http://newschoolsnetwork.org/get-involved/register as the first point of contact;
  • Stage 2 (Proposal) – Proposers complete a form asking them to set out the aims and objectives of the new school, the main people and organisations involved in the project, evidence of parental demand (eg a petition) and possible premises that have been considered.  The form is then submitted to the Department for Education.  The Secretary of State will then decide whether to allow the Proposal to move to Stage 3;
  • Stage 3 (Full Business Case and Plan) – Proposers will make a fully detailed business case for the new school and set out the plan to open and operate the school. This will need to include a detailed statement of educational aims and curriculum, final details of the key people and organisations that will be involved in the running of the school, full evidence that there is demand for the school and that it will be financially viable over a minimum five-year period, evidence that the school will meet all required standards (including the Independent School Standards and the Admissions Code) and a commitment to conduct national tests where appropriate, the name of the DfE project lead, details of proposed premises and a full business case for the public value of all start-up costs and financial projections for operating the school on an ongoing basis.  These are challenging criteria.  The Secretary of State will make an assessment based on this final business case on whether the project has met all the criteria to allow a new school to be set up and receive state funding;
  • Stage 4 (Pre-opening) – Proposers will sign a funding agreement contract with the Department to trigger the release of potential start-up funding. The school will need to set up new financial systems and contractual arrangements, completing registrations and ensuring that all Criminal Records Bureau (CRB) checks are carried out as necessary. The Department will support the school to ensure all legal documents are completed relating to governance, land transfer and company registration.

The government expects the first schools to open in September 2011.

Legal issues

Independent state schools are novel in the UK.  Each new school will involve a number of complex issues.  Competition to be in the first tranche of Free Schools will be fierce and it will be those who understand the issues best who are most likely to get through all four stages of the process.  Foremost among the relevant legal issues will be the following:

  • Legal form;
  • Whether to register as a charity and what regulation by the Charity Commission entails;
  • The acquisition of any site for the new school;
  • Planning considerations notwithstanding that DCLG will be updating planning guidelines;
  • Employment law;
  • Contracting with third parties;
  • Negotiating funding agreements with the DfE;
  • Education law. 

At Bircham Dyson Bell we have been advising independent schools on these and similar issues for many years.  We were recently named by Citywealth as Charity Team of the Year.  We are based in Westminster a short walk from both the Department for Education and the New Schools Network.