Much has been made of free schools by the media recently, but not in a positive way. There have been high-profile cases of failures by this new breed of school which have led to critics claiming that the free school model is fundamentally flawed and that public support is collapsing. But is it possible that those failures are, in fact, instances of mismanagement that have arisen due to a lack of corporate governance and observation by the governors of their legal duties?
In a report published on 17 October 2013, Ofsted judged Al-Madinah Muslim free school in Derby to be inadequate after an inspection triggered by complaints including whistleblowing by the Headteacher. The school was claimed to be ‘dysfunctional’ and was providing an ‘unacceptably poor standard of education’. As well as alleged equality breaches, the school was found to have breached ‘Health and Safety’ requirements by failing to verify the qualifications of staff of complete CRB/DBS checks. DfE investigations were ongoing into allegations of irregularities involving contracts with suppliers.
Another prominent free school, Kings Science Academy in Bradford, has been accused of serious financial mismanagement with an EFA report identifying possible financial irregularities and fraud. The issues were featured in an edition of Newsnight which described how a DfE investigation in early 2013 found that fabricated invoices and over-claiming against legitimate payments were claimed against the original grant monies. In addition, a number of members of the Headteacher’s family were hired to work at the school.
But are these issues really due to the fact that the schools are ‘free schools’? Is the model flawed?
Free schools were set up by the coalition government following the general election in 2010. They are state-funded schools, independent of Local Authority control. Mainstream free schools are academically non-selective and subject to the School Admissions Code of Practice (with the exception that they are allowed to give priority to founders’ children). In other words, free schools are a type of academy. This has been recognised by the Labour shadow cabinet who plan to rebrand them ‘Parent led academies’ if, and when, it gets into power. What sets free schools apart is that they can be set up by parents, teachers, charities or other groups.
Free schools are charitable companies limited by guarantee in just the same way as academies. The main ‘contractual’ details are set out in the Funding Agreement which in essence requires the academy or free school to provide educational services in exchange for funding provided by the DfE. Appended to the Funding Agreement are the Memorandum and Articles of Association which are the constitution of the company and set out the rules by which the company must operate. Although the DfE has model versions of the documentation, this has changed over time and individual free schools/academies may have been able to negotiate variation from the model. This means that it is essential to check the school’s documentation to verify the specific requirements.
Major scandals such as Enron, Parmalat and BCCI, have already arisen in the corporate world and have led to an increased focus on corporate governance. The Cadbury Committee published a report ‘Financial Aspects of Corporate Governance’ in 1992 in which it defined corporate governance as ‘the system by which companies are directed and controlled’. The report proposed recommendations on the arrangement of company boards and accounting systems to mitigate risks and failures. The resultant UK Corporate Governance Code expanded this to state that the purpose of corporate governance is ‘to facilitate effective, entrepreneurial and prudent management that can deliver the long-term success of the company’. The principles contained in the Code are primarily aimed at listed companies. However, the principles relating to the operation of the Board should also be considered by free schools and academies, not least because they are the recipients of public funding:
- Every company should be headed by an effective board which is collectively responsible for the long-term success of the company.
- The board and its committees should have the appropriate balance of skills, experience, independence and knowledge of the company to enable them to discharge their respective duties and responsibilities effectively.
- The board should present a fair, balanced and understandable assessment of the company’s position and prospects.
Failure to observe these principles leaves a Board of Governors/Directors open to criticism that it has not acted appropriately and failed to fulfil the requirements of the Funding Agreement.
Furthermore, as Governors are Directors they have ‘general duties’ imposed on them by the Companies Act 2006:
- Duty to act within powers
- Duty to promote the success of the company
- Duty to exercise independent judgement
- Duty to exercise reasonable care, skill and diligence
- Duty to avoid conflicts of interest
- Duty not to accept benefits from third parties
- Duty to declare interest in proposed transactions or arrangements (Directors must also declare an interest in any existing transaction or arrangements)
Governors have a fiduciary duty to their company, ie they must act with the ‘utmost good faith’. They also have a responsibility to ensure that the company complies with charity law requirements.
Those who do not act in good faith risk significant personal liabilities. In an extreme situation, a governor who is found to be acting fraudulently could be charged under criminal law and receive a prison sentence of up to ten years. Governors could also find themselves disqualified from acting as a director of a UK company for a period of up to 15 years as well as subject to a fine.
Unfortunately, although the principles of corporate governance should apply to free schools and academies, they are run by volunteers acting as Directors who often lack the skills or experience to understand the obligations. They are not aware of the requirements let alone ignore them. Most corporate bodies have professional individuals involved with the administration of its corporate governance. If errors can occur in this situation, what hope is there for free schools and academies?
Just like the corporate governance scandals that occupied the media in previous years, the instances of failures in free schools are few and far between. This is, of course, no reason to ignore the problems. However, it is not the structure of the free school that is at fault.
However, a more robust process to ensure ongoing financial and regulatory oversight is required to ensure that all academies and their Directors are appropriate guardians of funding and use it to the benefit of the pupils. One way of ensuring at school level that the obligations are being met is to engage the services of a company secretarial advisor who can highlight the areas of risk and ensure that a robust system in put into place.