Hotline advice expressed here, and in calls to us, is made in good faith to our members. Schools and colleges should always take formal HR or legal advice from their indemnified provider before acting.

Leaders' surgery

Urgent business

Q: I am a principal in an academy and our academy is its own admissions authority. I had arranged an admissions appeal panel and was then absent from school due to a family funeral. On my return, I discovered that the chair of governors had decided to cancel the appeals panel and singlehandedly agreed that the two pupils concerned be admitted to the school. When I challenged her about this, she told me she had done it under ‘chair’s urgent business’.

A: The delegation clause in article 105 of the DfE’s model articles of association for academies allows the delegation of functions to trustees, committees, local governing bodies, principals or another holder of an executive office. This needs to be done in advance of decision-making processes. Many (stand-alone) academies choose to model their scheme of delegation on the regulations that were in place when they were a maintained school; for maintained schools, Regulation 8 of the School Governance (Roles, Procedures and Allowances) (England) Regulations 2013 sets out the chair’s power to act on behalf of the governing body in cases of urgency. These regulations state that the chair has the power to exercise any function of the governing body that can be delegated to an individual when, in their opinion, a delay in exercising the function would be likely to be seriously detrimental to the interests of the school, any pupil at the school, or his/her parent or a person who works at the school.

In this case, there are a number of reasons why the action of the chair goes beyond the scope of the “chair’s urgent action”. First, this power is limited in that it can only be used where there is a power to delegate authority to act to an individual. This cannot apply to offering places at the academy as the School Admissions Code 2014 (paragraph 2.7) makes it clear that it is the full governing body or admissions committee that must make the decision. Second, it is debatable whether this would meet the definition of urgent circumstance and there was no reason why the governing body or admissions committee could not have met prior to the appeal panel hearing.

There are a number of consequences that flow from this action. There may be a need to consider the governance arrangements at the academy and particularly the recent actions of the chair. You may need to consider whether there have been any breaches of the academy’s code of conduct (if one is in place) or breaches of the funding agreement by taking this action. If so, the academy trust may need to consider removing the chair from the governing body.

Additionally, the academy would need to consider whether there are grounds for withdrawing the places from the students concerned. Paragraph 2.12 of the School Admissions Code 2014 does allow places to be withdrawn in limited circumstances, including where the places were offered in error. However, the academy would need to consider carefully its position in respect of these offers given the potential for legal proceedings, complaints to the DfE and the negative publicity that such action could generate.

Keeping everyone happy

Q: I am a deputy head in a maintained school and we arranged for one of our troubled Year 11 students to do their Key Stage 4 at the local college. Our special educational needs co-ordinator (SENCo) explained to the mother of the student that this was the best option for him, and she agreed. Now the student is unhappy at the college and the parent wants him back in school to do GCSEs. What do we do?

A: This issue is fraught with problems, and your school will need to take formal legal advice. If your curriculum statement stated clearly that courses at the college were a Key Stage 4 option, then this is part of your curriculum offer, and you would have to deal with any unhappiness in exactly the same way as with any other student who was not enjoying one of their courses.

You have said that the student was ‘troubled’; if the decision for them to go to college for an alternative curriculum was related to their behaviour, then there are tight regulations as to who can take the decision for them to go to college, and how the situation is periodically reviewed.

According to the Education (Educational Provision for Improving Behaviour) Regulations 2010, the headteacher must make the decision and must set out certain details of the alternative provision in writing to the parent, including location, duration and reasons underpinning and objectives of the placement. In addition, the governing body must review periodically the progress being made and the effectiveness of the provision. If this has been done, and the school still feels that for behavioural purposes the college is the best provision, then the school can insist that the student continues at the college (it does not need parental permission).

However, recent case law suggests that if it was the SENCo who took the decision (even if the head was involved in ‘rubber-stamping’ it), and the governors were not actively involved, then the school was in breach of this regulation and would have to take the student back into the school and provide an appropriate curriculum. The school would then need to follow the appropriate procedure to put alternative provision back in place.

Contact the hotline

ASCL members concerned about leadership issues should call the Hotline on 0116 299 1122 or email hotline@ascl.org.uk

David Snashall and Rachel Bertenshaw are ASCL Hotline Leaders

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