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.