The law and processes of school organisation – England

This page sets out how schools in England open. We also consider schools changing their type of establishment, gaining a religious character, increasing their age range, closing or amalgamating. There is a separate page for Wales.

There are three main routes through which mainstream schools can open in England:

1. The periodic Free School ‘waves’ organised by the Department for Education. Here the process is more opaque and the consultation requirements much looser than elsewhere. On the plus side, Free Schools can only religiously select up to 50% of pupils and must demonstrate how they will reach out to the wider community.
2. Proposals made at the invitation of a local authority – initially Free Schools, but if this doesn’t result in a school, then a local competition between voluntary controlled, voluntary aided, foundation or Free School proposals; and if this still doesn’t result in a school, then community school proposals. The process for considering the voluntary, foundation and community school proposals is much more transparent and the consultation requirements much more stringent than with the Free Schools, but this could result in proposals for voluntary aided or foundation schools that select up to 100% of pupils.
3. Proposals made for voluntary or foundation schools by a third party (e.g. a faith group). Again, the process involved is transparent and the consultation requirements are stringent, but here we could have a local authority working with a faith group in support of proposals by the latter to establish a 100% selective voluntary aided or foundation school, and this is quite difficult to challenge.

In addition, schools can hold consultations to change from one type to another. Particularly concerning is when a voluntary controlled school decides to become a voluntary aided school, foundation school or Academy, because this will mean that it becomes the authority responsible for deciding its own admissions, instead of its local authority. Most local authorities don’t let their VC schools religiously select.

Another concerning issue is when schools close or amalgamate, resulting in more religious selection than was previously the case, and another is when a religiously selective school decides to increase its age range.

We have set out the process in more depth in the following sections.

1. Proposals made for Free Schools through the Government’s periodic ‘waves’

The Department for Education periodically invites groups to submit proposals to it to open Free Schools. The most recent period led to the announcement in May 2013 of 102 Free Schools ‘pre-approved’ by the DfE to open from September 2014. The three periods for schools opening from September 2015 sees proposals submitted in September 2013, January 2014 and spring 2014, with decisions being made a quarter later. More details and the criteria for applications are set out on the DfE’s website.

Proposals are submitted directly to the DfE. Criteria that proposers must satisfy include:

• ‘Provide evidence of demand from parents with children of the relevant age for each new year group in each of your first two years of operation. Include confirmation from parents that they would select your Free School as the first choice for their child’
• ‘Demonstrate how you intend to reach out to the wider community including, where relevant, children from a range of backgrounds, faiths and abilities.’ Similarly, ‘If you are proposing to set up a faith Free School (either a school with a faith ethos or a school designated as having a religious character) you should note that the school should appeal to a wide range of parents and pupils, including those of other or no faiths’.
• ‘Free Schools designated as having a religious character will have to balance the needs of (a) children of the particular faith and (b) children of other faiths or none; and when oversubscribed, will have to limit those admitted solely on the basis of faith to 50% of their yearly intake.’

While proposers have to locally gather evidence of demand, they do not need to widely publicise their proposal or tell the local authority. Proposals are not announced by the DfE until after it has decided which to ‘pre-approve’ (i.e. back to open), although Humanists UK, a supporter of the Fair Admissions Campaign, is challenging for the release of this information earlier. Therefore you will need to keep your eyes on the local media in order to become aware of any proposals in your area.

Some cases are arising where the local authority is itself a minority partner in a Free School proposal, a secondary school pre-approved for Kingston-upon-Thames being a case in point.

When a proposal is pre-approved it will be publicised by the DfE and widely reported in the media – so please also look out for this (we’ll also publicise it).

Following on from this, the proposer must consult on two matters – firstly on whether or not the school is to open, and secondly on what admissions arrangements the school is to enter into. These could be done as two separate consultations or combined as one. On the first of these, the proposer must consult ‘such persons as’ it ‘thinks appropriate’, and it also gets to decide itself what the outcome of the consultation is. This is pretty minimal. However, there are various requirements on public consultations that have been established through case law and that the proposer should consequentially adhere to. In addition, if you don’t think a consultation has been run properly, then you can complain to the DfE about this – who should be able to hold the proposer to account.

On the second, Free Schools are required by their funding agreements to ‘consult on its admission arrangements and determine them in line with the requirements within the School Admissions Code.’ More stringent requirements are imposed here, including in terms of who must be consulted – as set out in paragraphs 1.42-1.45 of the Code. The arrangements themselves must also comply with the Code.

After these consultations, assuming the proposers and DfE agree to go ahead with the proposal, they will sign a funding agreement and the school will subsequently open.

2. Proposals made at the invitation of a local authority

If a local authority decides it needs a new school in its area, it can invite groups to submit proposals for a Free School. These proposals will be adjudicated against each other by the Department for Education, which will then decide which to take forward (much in the manner set out in the previous section).

If no applications are received or approved, the local authority can then hold a competition, inviting proposals for voluntary controlled, voluntary aided, foundation or Free Schools. It can propose foundation schools itself, if it wants, but proposals for community schools cannot be submitted. The law and regulations specify the process to be followed and who must be consulted, and are comparatively stringent (in addition there are general legal requirements on consultations established through case law). Broadly speaking the process to be followed is:

1. Firstly, a pre-statutory consultation (typically six weeks long). The local authority ‘must consult such persons as appear to the authority to be appropriate’.
2. Then groups are invited to submit proposals, and have four months to do so.
3. Proposals are then formally published. If any proposals for Free Schools are received, these are considered by the DfE first of all (much in the manner set out in the previous section).
4. If none are received or approved, then the voluntary controlled, voluntary aided and foundation proposals are considered by the local authority (unless it is involved in a foundation school proposal, in which case the schools adjudicator does so instead). A six week representation period (i.e. consultation) is undertaken.
5. Then a decision is made by the local authority or schools adjudicator within two months.

If this process still fails to result in a school being established, then a local authority can publish proposals to establish a new community school. This similarly involves a pre-statutory consultation (typically six weeks long); then a formal publication of proposals and a six week representation period (i.e. consultation); and then a decision within two months made by the schools adjudicator. Once again, the law and regulations specify the process to be followed and who must be consulted (in addition there are general legal requirements on consultations established through case law).

As noted above, cases are arising where a local authority takes a role as a minority partner in a Free School proposal.

3. Proposals made for voluntary or foundation schools by a third party (e.g. a faith group)

A third party (i.e. not a local authority) can publish proposals to establish a new voluntary aided, voluntary controlled or foundation school. In the case of VC and foundation schools, to do so requires consent of the Secretary of State for Education, but for VA schools no such consent is required. This is important as VA schools tend to have the most discriminatory over-subscription criteria.  The law and regulations specify the process to be followed and who must be consulted (in addition there are general legal requirements on consultations established through case law). Broadly speaking:

1. First there is a pre-statutory consultation (typically six weeks long).
2. Then proposals are formally published, followed by a six week representation period (i.e. consultation)
3. Then a decision is made within two months by the local authority.

The local authority can, if it wishes, work in support of the proposals, including buying and spending money on a site for the schools.

Schools changing their type of establishment, gaining a religious character or increasing their age range

A voluntary, foundation or community school cannot gain or lose a religious character, or change religious character. However, often schools do this by closing and re-opening as a brand new school, which involves following the processes set out above. The Fair Admissions Campaign does not oppose faith schools, but campaigners must be aware that when a school is designated as having a religious character by central Government its pupils can be selected on faith grounds when oversubscribed.

In addition, sometimes selective schools increase their age range and thus increase religious selection.

Academies and Free Schools can formally gain a religious character or change their age range by having a consultation. These consultations are entirely unregulated – the school must simply satisfy the Department for Education that a thorough enough process has been followed – although there are general legal requirements on consultations established through case law.

Schools can also convert between different types. The only restrictions are that a voluntary aided, voluntary controlled and foundation schools cannot become community schools, and Academies and Free Schools cannot become any other type.

For maintained schools converting to being voluntary or foundation schools or expanding their age range, the law and regulations (as amended) specify the process to be followed and who must be consulted (in addition there are general legal requirements on consultations established through case law). The process is transparent and these requirements are fairly stringent, as with consultations on establishing new voluntary, foundation or community schools (set out in the previous section).

For community, voluntary or foundation schools converting to becoming Academies, the law only specifies that ‘the school’s governing body must consult such persons as they think appropriate.’ The governing body oversees the process and decides the result (although the DfE must agree with it). Beyond that, there are various requirements on public consultations that have been established through case law and that the proposer should consequentially adhere to.

Schools closing or amalgamating

Schools can also close or amalgamate. The law and regulations specify the process to be followed for community, voluntary and foundation schools and who must be consulted. Broadly speaking, the consultation process is strict for these three types of schools, while for Academies and Free Schools the process is much weaker – much as set out in the previous sections (in addition there are general legal requirements on consultations established through case law).

Research conducted by Humanists UK has found that where a school is to close, it is much more likely to be proposed to be a school without a religious character than a faith school. Similarly, where schools are to amalgamate, if one of the two schools is a faith school, the result is essentially certain to be proposed to be a faith school. This is often because the Dioceses have a very powerful say in such consultations and can protect their existing schools. However, there is still an opportunity for you to advocate that your area should not permit more discrimination than has previously been possible.