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19/10/11

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Free schools able to opt out of the Admissions Code

I am grateful to David Wolfe, a barrister at Matrix Chambers, for pointing out that free schools appear to have special freedoms to exempt themselves from the Code of Practice on School Admissions. David has spent much of the last decade examining and challenging the legal basis for academies and free schools. His website A Can of Worms is a mine of fascinating information about independent state schools and the ramifications of schools that are governed by funding agreements/contracts with the Secretary of State rather than by the body of law the regulates all maintained schools.

We are continually told that, even though any contractual arrangement can be subject to negotiation, free schools and academies must abide by the Code of Practice on Admissions since that is what is written into  model funding agreements produced by the DFE.

However when you look at the model funding agreements there is a difference between the version for academies and the one for free schools.

The free school funding agreement paragraph 12(c) states:

(c) the admissions policy and arrangements for the school will be in accordance with admissions law, and the DfE Codes of Practice, as they apply to maintained schools, subject to any exceptions in Annex B;

Contrast with the equivalent in the academy model:

(c) the admissions policy and arrangements for the school will be in accordance with admissions law, and the DfE Codes of Practice, as they apply to maintained schools;

What could the exceptions in Annex B of the free schools funding agreements consist of? Unfortunately we won’t know the answer to that until the free schools that have already opened or signed a funding agreement make those documents, and their annexes, publicly available. At the moment neither the DFE or the promoters seem prepared to do that. I wonder why?

One of the reasons I , and others, have always opposed academies and free schools is that the funding agreement model allows the Secretary of State in post considerable scope to reintroduce more selective admissions practices via the funding agreement . The existence of this ‘opt out’ is the thin end of a very long wedge.

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Comments, replies and queries

  1. This might encourage the sharp elbowed, self-interested and articulate to sign up for steering committees so that their offspring will be guaranteed a place at “their” school designed to their specifications. And all sort of parameters can be negotiated in Annexe B, if not to overtly select then to covertly select and in such a way that the proposers can effectively keep out those they don’t want. Is this egalitarian?

    I suppose instead of “Free Schools” in the future, we shall have “Free Market Schools” and the Admissions Exemptions will go a long way to assist this.

  2. Fiona – you (or anyone) can read Annex B on the DfE website here: http://www.education.gov.uk/schools/leadership/typesofschools/freeschools/a0074737/free-schools-model-funding-agreement

    I am not a lawyer but perhaps David Wolfe (or even yourself) would like to confirm where in this annex it states Free Schools need not comply with the Codes?

    As opposed to clause 2 which states inter alia that “The Academy Trust will act in accordance with…all relevant provisions of the School Admissions Code and the School Admission Appeals Code published by the Department for Education (“the Codes”) as they apply at any given time to maintained schools and with equalities law and the law on admissions as they apply to maintained schools.”

    I would think that any changes arising from clause 1 would likely be subject to wider public consultation so I am not really sure how relevant your concerns are. One can only guess at the motivations behind Matrix (where might their political sympathies lie do you think and why would that be I wonder??) and given that one lawyer can earn a mint from drafting such weazle words and then another lawyer challenges such ambiguity and intent, one can hardly rely on such ‘legal’ comments as being wholly objective in the first place. The law is indeed an ass.

    • The link which Jake provides is to the ‘model funding agreement’ (i.e. the template used as the starting point for negotiating the actual agreements). If Annex B (admissions) of the actual agreements are in the same terms as the model, then the obligation (albeit only contractual and not obvioulsy enforceable by parents – see my blog) on any free schools with such agreements will be to comply with the Admissions Code. But, as Fiona Millar’s posting explains, the model for free schools contemplates that Annex B of a particular agreement might, in practice, allow for departure from the model (and thus allow for exceptions to the Admissions Code). That would be part of the discussion between the promoters and the DfE for each particular free school. As far as I know that process has never been public and never involved public consultation (nor, as it happens, has the process of drawing up the ‘model’ – that is simpluy published by the DfE). If whoever in the DfE who actually drafted the model had not thought that there might be variations (i.e. in the terms of the actual Annex Bs as negotiated in due course) then it is hard to see why they would have included the words “subject to any exceptions in Annex B” in Clause 12c of the body of the model agreement. It may be, of course, that in practice all of the actual Annex Bs are in exactly the terms of the model. But that will only become clear when the actual funding agreements are made public. As I explain on http://www.acanofworms.org.uk the model is only a starting point. Of course, these issues only arise because the DfE has chosen to use such a complicated legal framework. That is why I called my blog ‘a can of worms’ – ‘a source of unforeseen and troublesome complexity’.

      Can I also clarify to Jake: my blog is entirely my own (as it makes clear) and nothing to do with Matrix (which is merely the chambers from which I practice). As it happens, colleagues at Matrix sometimes act for academies (and for all I know free schools). Matrix certainly does not have a position on academies/free schools (contrary to what Jake implies). The views I put on my blog are the best I can do to give a straightforward and clear view of the law. If anyone thinks there is an error (or even a distortion, as Jake implies) then please let me know and I will be delighted to correct the text – a couple of people have already pointed out some omissions, which I have been pleased to correct.

      • The point that interests me is a legal view at this point in time on which document takes precedence in the event of a conflict? If for example Appendix B is varied and is then at perceived odds with the Codes then which document is right? This of course is all untested to date and indeed may or may not be an issue in the future. I have no doubt this is a can of worms – as is much else in life hence why lawyers exist for if everything was simple we would have no need of lawyers. Barristers contesting this point of precedence will be no doubt be richly rewarded for giving the court the benefit of their wisdom should such a court case arise.

        • The Admissions Code is simply a piece of text until some legal mechanism makes it into an obligation. As explained on http://www.acanofworms.org.uk that occurs for maintained schools by operation of section 84(3) of the School Standards and Framework Act. You can find that on http://www.legislation.gov.uk/ukpga/1998/31/section/84. As you will see there section 84(3) requires certain specified bodies to have regard to the Code. One of them, specified in section 84(1)(b) is the governing body of a maintained schools. No mention of Academies or Free Schools. Academies/free schools are only bound to the Code if, and, to the extent that, their particular funding agreement requires it. So, if a funding agreement says they must comply with the whole of it, that is the obligation. But if the particular funding agreement says they need only comply with part of it, or allows them to do things which conflict, that is what they can do. So it is not a question of precedence (because the Code has no status at all). All that matters is what the particular funding agreement says: it can bind the individual school to as much, or as little, as the DfE and promoter negotiate.

          For what it’s worth: Jake can be assured that no lawyer would make any money about arguing about that point – it is completely clear. There is no need for for any court action to clarify this particular point. But, unfortunately, that is not the case with other things arising from the law of academies/free schools. But if, in the end, lawyers are needed to sort out the complexity then that is hardly the fault of the lawyers. I’m not aware that anyone blames doctors in A&E departments for road accidents, or complains that the doctors get paid for treating the victims. I, for one, would be delighted if the law relating to academies and free schools were simpler – apart from anything else it would save me having to constantly re-explain it to people. As it happens, that is why I set up my blog. My intention is that the answers to all these basic questions should be on there. If there are questions missing, then people should please let me know and I will try and fill in the gaps. David

          • Interesting feedback. Although I am not sure the doctor/patient analogy holds water – perhaps if the doctor had caused the road accident? After all it is a lawyer who would have drafted the legal agreement(s) in the first place that then often get contested by other lawyers employed by disgruntled clients!

          • Jake – A lawyer may have drafted the wording of legislation but it is politicians who implement legal concepts and pass them. So no fear here of a lawyer/doctor causing an accident. Also, people mount legal challenges not because they are capricious but because an injustice, either unlawful, illegal or in breach of an agreement, has been caused

        • Much easier if the Admissions Code for these new schools were applicable in exactly the same way as for existing schools. It is precisely because they are allowed to vary it that raises concern and suspicion, particularly as there has been an evident lack of transparency about both the Academy and Free School programme and a clear desire for the government to both suppress and be less than truthful about it, as recent leaked emails by Dominic Cummings and the untrue claims made by the New Schools Network have shown.

          Such deceptive behaviour needs to be called to account, first and foremost. The legal profession has every right to earn its living by redressing injustice or upholding the law, more so under the present political climate when the less advantaged are facing more and more policies which further erode their rights. David Wolfe’s blog is free to anyone who wants information. Membership to – and influence in – the Atlantic Bridge was not anywhere near as democratic and open.

  3. Janet Downs says:

    Annex B (re admissions) clearly states as its first clause:

    1. This Annex may be amended in writing at any time by agreement between the Secretary of State and the Academy Trust.

    I’m not a lawyer but this clause seems to suggest that anything that follows clause 1 can be changed by agreement between the Secretary of State and the Academy Trust as long as it’s in writing. And there’s nothing in Clause 1 which says that this agreement must be preceded by a public consultation. On the contrary, it seems to be a private matter between the Secretary of State and the Trust.

    What an extraordinary statement: “one can hardly rely on such ‘legal’ comments as being wholly objective in the first place.” This rather undermines the entire judicial system, which is based on interpretation of laws laid down by Parliament and independence of the judiciary.

    • This is entirely to do with legal hierachy and I’d welcome Mr Wolfe’s views on whether this early stage Free School funding agreement trumps all other legal requirements (the semantics all as yet untested in a court of law or the like). You appear to be as willfully naive Janet as to the workings of the law as you are to the media agenda. Sadly life is not quite as black and white as you would like it to be.

  4. Concerns arise when politicians are exposed, time and again, to have been less than transparent about their motives or their policies and when they repeatedly disseminate false and selective information in order to hoodwink the press and public into believing their policies will transforms lives.

    The establishing of Free Schools – and their individual Funding Agreements – have been shrouded in secrecy from the outset and their supporters have been correspondingly shrill and confrontational. It is not therefore reassuring to find out that Admissions can be modified to suit the school and the Secretary of State. It might help everyone if Michael Gove published some examples of how exceptions can be inserted in Annexe B but since no Funding Agreement to date has been published this is unlikely.

    Equally unlikely is disclosure from The New Schools Network as the leaked email from Dominic Cummings revealed:-

    “NSN [New Schools Network] is not giving out to you, the media or anybody else any figure on ‘expressions of interest’ [from people wishing to set up free schools] for PQs [parliamentary questions], FOIs [Freedom of Information requests] or anything else. Further, NSN has not, is not, and will never answer a single FOI request made to us concerning anything at all.”

    In the meantime it is great that a leading education expert such as David Wolfe is providing this information for free.

  5. Mr Chas says:

    As I understand it, Free schools are allowed, if they wish, to guarantee a place for the children of its founders. I would presume that Annex B is where a Free school can put things like this.

  6. Perhaps Exemptions to the Admissions Code will include children who’s hair is too long or too short.

    The West London Free School has acted tough by excluding a boy because his hair (not unlike Lewis Hamilton’s) was 3mm too short, as this will “breed bullying and unpleasantness” according to the Head. Toby Young seems to think that hair too short will get in the way of achievement saying “We believe the way to get the best out of every pupil is to hold them all to the same high standards.”

    Not sure who is breeding bullying and unpleasantness here. Anyone know the rules for hair length at Eton?

    http://www.thisislondon.co.uk/standard/article-24000870-free-school-suspends-boy-11-over-haircut-thats-3mm-too-short.do

  7. My interpretation of one aspect of the draft admissions code is to serve the failed independent schools being rescued and reborn as a free school . Where the school operated aptitude testing when independent they will be allowed to continue to do so .Also that the school will be able to expand to parental demand and still apply testing even though state funded. Could this even allow the creation of selective state funded primary schools?

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