Schools that work for everyone

VWV’s Con Alexander asks, what is the likely impact for HEIs?

The government launched its consultation on ‘schools that work for everyone’ on 12 September 2016. 

The consultation has been reported on widely in the press, primarily in relation to grammar schools and the implications for the benefits of charitable status for some independent schools. 

The implications for universities raised by the consultation have been less well publicised, but they are potentially very significant for the HE sector as a whole. 

Sector cohesion 

In policy terms, the consultation document looks like an attempt by government to draw together a number of different strands within the education sector in support of its academy and free school programme. 

That programme saw its genesis in the City Technical Colleges established under Conservative rule in the late 1980s. It was developed further under the Labour government that followed, culminating in the Academies Act 2010 and the steady governmental pressure since then under Labour, the Coalition and the current Conservative government across both primary and secondary education in England. 

Short of a Labour government under Jeremy Corbyn’s leadership, the direction of travel in primary and secondary education seems relatively clear. The question for the HE sector is how to respond to that in the light of the consultation.

The degree of commitment required in order to deliver outstanding or good outcomes should not be underestimated. There are challenges in terms of funding, demographics, social context and other factors which may make achieving what the government’s consultation suggests is expected a challenge

Proposals affecting HEIs

The consultation suggests that:

  • A university’s ability to charge fees to students in excess of £6,000 per annum should be dependent on the university “establishing a school in the state system” (i.e. a free school) or “sponsoring a school in the state system” (i.e. an academy).
  • These schools are expected to be rated ‘good’ or ‘outstanding’ (by Ofsted) within a “certain number of years”.
  • Over time, the university would be expected to extend its support to other schools, which would in turn become ‘good’ or ‘outstanding’.
  • The university should take into account geography, the number of good school places and HE participation rates in deciding where to focus its efforts.
  • The focus is on driving attainment by pupils at the schools, but the university will also be expected to support schools in relation to governance, curriculum design, finance, mentoring, teaching capacity, HR and other forms of educational support. This requirement is clearly identified by the consultation as being in addition to sponsoring an academy or establishing a free school.
  • The consultation suggests that a university’s contribution should be assessed by the Director for Fair Access (DFA) in line with government guidance issued in early 2017 and implemented in HE institutions’ access agreements for 2018/19, but asks whether issuing guidance is the most appropriate way of achieving this.
  • The government will also consider whether legislation is required which goes beyond the powers vested in the DFA in agreeing access agreements.  The consultation specifically refers to the possibility of future legislation to require HE institutions to sponsor academies and free schools.

Wider issues raised by the proposals 

There are some potentially important issues raised by the consultation for HE institutions. Some universities already sponsor academies and have established free schools, but a number do not. And even those universities which already have an established relationship with an academy or a free school may need to look again at the role the university is taking in raising attainment.

A key question for those universities which are not yet involved with academies and free schools is the level of commitment that is envisaged and the implications in terms of time, resource, reputation and money. 

There are also some legal issues that are relevant to this. There is no statutory framework for what constitutes ‘sponsorship’ and what this means in practice is largely a reflection of current DfE policy, but sponsoring an academy will typically involve becoming a member of an ‘academy trust’ which is established to operate one or more academies and also having the right to appoint at least some of that academy trust’s trustees (whether described as ‘governors’ or ‘directors’). 

The same is likely to be true in relation to establishing a free school. A free school is fundamentally an academy (in that it is set up, funded and regulated by the DfE and Ofsted in the same way as an academy), but one that is not set up to take on existing educational provision. In other words, a free school is a ‘new’ academy, which does not take on an existing maintained school. 

HE institutions will need to consider a range of issues, including the basis on which they enable university staff or governors to participate in the governance of a sponsored academy or free school (e.g. do they understand their duties when acting in that capacity?). HE institutions will also need to ensure that providing support to an academy or free school is within the scope of their charitable educational objects.

Perhaps as importantly as the implications for HE institutions in respect of fee charging, sponsoring an academy or establishing a free school will essentially mean nailing the university’s reputation to the academy or free school’s performance in terms of pupil attainment. While this is a question with which universities will be intimately familiar in relation to their own students, raising the attainment of primary and secondary students may well pose a range of very different challenges. 

Ultimately, what is likely to be required in relation to pupil attainment (and the kind of ‘good’ or ‘outstanding’ judgements by Ofsted which the government say they are looking for) is a deep and potentially time-consuming commitment from HE institutions to the academies they sponsor and the free schools they establish.

Will it be enough for a university simply to sponsor an academy publicly and appoint what it considers to be a competent board of trustees to run it?  The consultation document suggests that HE institutions should have a deeper role and that the ability to charge fees will ultimately depend on how well a sponsored academy or free school performs in educational terms. So, in simple terms, the key is attainment rather than effort.

The degree of commitment required in order to deliver outstanding or good outcomes should not be underestimated. There are challenges in terms of funding, demographics, social context and other factors which may make achieving what the government’s consultation suggests is expected a challenge. An Ofsted judgement which concludes that an academy or free school is not good or outstanding (and which will generally be delivered without regard for the social context within which an academy or free school may operate) will require an immediate response from the university which sponsors it. That response might include e.g. making changes to an academy’s board of trustees to secure improved governance. But the commitment is likely to go further than that, requiring the university to take a very active and ongoing role in securing rapid improvement in attainment for pupils. 

What about UTCs?

The government’s focus on academies and free schools is interesting. A number of universities have established ‘university technical colleges’ (or UTCs). UTCs provide education for 14 to 19-year-olds which focus on technical provision outside the usual range of GCSE and A-level provision. There are currently 48 UTCs in existence, all established with the support of the Baker Dearing Educational Trust. Like free schools, UTCs are essentially established in the same way as academies. 

UTCs are not referred to in the consultation. If the government does intend to deploy the skill and experience of the HE sector in support of its academy and free school programme, should some HE institutions focus their efforts on UTCs rather than academies and free schools? And will this ‘count’ in terms of government policy?

The consultation closes on 12 December 2016.

Con Alexander is a partner at leading education law firm Veale Wasbrough Vizards. Con can be contacted on 0117 314 5214 or at

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