Academy Trust
The Academy Trust will be a company limited by guarantee incorporated with the Registrar of Companies. It is a separate legal entity and it will therefore have control over the land and assets of the Academy. The Academy Trust will operate as a charitable company. However, it will be considered as an ‘exempt’ charity and therefore it will not have to follow the registration process of becoming a charity with the Charity Commission. Most likely the existing Governors will be appointed as Governors of the Academy Trust and they will need to comply with obligations under Charity and Company Law. For more information see ‘The Academy Trust, Governors Duties and Liabilities’.
Transfer of Staff
The Academy Trust will employ the staff of the Academy. The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) will apply to the transfer of the staff and the terms and conditions of the staff’s employment will transfer from the existing school’s Governing Body or from the Local Authority to the Academy Trust without alteration. The Academy will have the freedom to set their own terms and conditions for new staff joining the Academy, however, if any amendments to the staff’s term and conditions are proposed prior to the conversion or shortly after a full consultation process will need to be undertaken and it is vital that legal advice is sought.
Our employment law team have extensive knowledge of TUPE. Compliance with these regulations will be a key part of the process and we will give you a clear step by step guide as to what notification and consultation process if any must be followed with staff. For more information see ‘Consultation and Staff Transfer’.
School Land
The transfer of school land from the existing owner (whether that is the Governing Body, Local Authority, the Foundation or Trustees of the school) to the Academy Trust will be dependant on the ownership history of the school land and the category of school.
Freehold Interest:
- The Governing Body or Trustees of a Foundation school or Voluntary Aided school usually hold the freehold interest in the school land. If so they are in a position to transfer the freehold interest to the Academy Trust on or before the conversion date providing that a direction for the transfer of the freehold has been received from the Secretary of State.
Leasehold Interest:
- Community Schools will only have a leasehold interest and on or before the conversion date the Local Authority will grant a new lease of the school land to the Academy Trust under 125 year lease for peppercorn rent.
Our property solicitors deal daily with transfers of title of both freehold and leasehold premises. They will deal efficiently with the transfer of the school land and property to the Academy. It is usual that the property transfer presents the most challenges and in our experience the following are most common:
- Unknown school boundaries
- Local Authority Libraries or Community Centers being within the school boundaries
- The school land being unregistered
- A restriction on the title by a prior land owner such as the Homes Community Agency requiring the Academy Trust to enter into a deed of adherence
- The transfer of land to a foundation school being incorrectly dealt with by the Local Authority requiring two transfers of title prior to conversion
- Land shared by a number of parties within the title of the land
To prevent delays we will identify these at an early stage and commit the necessary time to resolve them.
The Commercial Contracts
The Articles of Association and the Funding Agreement govern the regulation of the Academy. The Commercial Transfer Agreement documents the transfer of the assets from the existing school and the benefit of any contracts required after the conversion to the Academy Trust. Our commercial team has a wealth of experience in the education sector and they are able to give clear and accurate advice and will deal efficiently with the negotiation of these documents to protect the interests of the Academy Trust.
Funding
The school will receive funding based on the level of Local Authority funding already calculated for the school. In addition they will receive a sum of money amounting to what is usually retained by the Local Authority to fund central services that the local authority will no longer provide. The Funding Agreement also gives consideration to VAT liabilities and insurance costs. A grant of up to £25,000 is available to assist with the cost of conversion.
Pre-Opening and Registrations
On or before the conversion date the Governing Body is required to register with a number of organisations including the Information Commissioner’s Office for data protection registration, with exam boards and the Teachers’ Pensions, the regulatory body of the Teachers’ Pension Scheme. Where required, the Academy Trust is also under a duty to ensure that all of its Governors and Members have received an enhanced CRB check.
The information on Academies is continually being updated and if you would like further advice please contact Tracy Evans on 0208 290 3982 or by email at tracy.evans@wellerslawgroup.com
