back to school toolkit – governance briefing

The legislation does not make this clear. The Governing or Trust Board is responsible at a strategic level but Headteachers have statutory responsibilities for the day to day management of the school.

For maintained schools, Section 21 of the Education Act establishes that the “the conduct of a maintained school shall be under the direction of the school's governing body”. This duty is subject to any contrary legislative provisions and the School Governance (Roles etc) Regulations 2013 provide that the Headteacher is responsible for the organisation, management and control of the school.

For academy trusts, the Funding Agreement with the Secretary of State establishes the obligation to operate the Academy and therefore how the organisation meets its obligations under the Funding Agreement is ultimately a matter for the Board.

The decision to re-open in these circumstances covers both areas of responsibility and would, in our view, be a decision that is best taken jointly between Headteacher and Governing/Trust Board.

This will depend on the type of organisation you are. The full list of responsibilities for maintained schools will be different to those of academy trusts. Key areas where you will want to understand your responsibilities are in respect of health and safety, your staff and pupils. Please see the other relevant sections (health and safety, employment and HR, parents and pupils) of this toolkit for further information on these issues.

The decision you take must be an informed one, based on as much information as you can obtain and an in depth and proper understanding of your school(s). It will be necessary to balance very carefully the health and well-being of your staff, pupils and parents/carers together with the duty to educate the children in your care. It will also be important to liaise carefully with relevant leaders to understand their individual capacity and that of the other staff members.

You will therefore want to follow a robust decision-making process after carrying out a thorough risk assessment of your proposed delivery model. It is also likely that you would want to understand the views of staff and parents (it is likely that you will want to regularly seek stakeholders’ views over the coming weeks and months). It will be important to keep the risk-assessment under regular review.

When making these decisions you will also want to consider the latest non-statutory guidance and updates being published by the Department for Education. The current guidance for primary schools makes it clear that schools are ultimately responsible for making their own decisions particularly in relation to site safety and staffing arrangements. This could include decisions to vary the timings and length of the school day.

This will depend on a wide range of external factors and at this time, it is very difficult to set out what will happen. For example, it may be that the Government pauses its plan of 1st June because the scientific data leads to the Government to pause the phased re-opening of schools under its roadmap to lift restrictions.

It is also worth remembering that the Coronavirus Act gave the Government extensive powers to tackle the outbreak. You can access our briefing on the new education powers here.

There has been a substantial amount of guidance issued by the Government recently and the issues involved in the phased re-opening of schools can be complex. It may well therefore be sensible to establish a Coronavirus Working Group of Governors/Trustees who can develop their understanding of the complex issue schools face and keep up to date with latest guidance in order to provide effective support to the school leadership in making complex decisions and balancing risk.

This may be an important step in ensuring that your Governing Body/Board is well placed to make urgent decisions. It could also be a sensible contingency plan in case the Chair and/or Vice-Chair become unwell and can no longer support the leadership team with extremely urgent decisions.

This will really depend on your individual circumstances. It may well be sensible to plan in shorter meetings every 4-6 weeks in recognition of the dynamic nature of the country’s response to the crisis. It may well be necessary to have additional meetings on short notice.

You may also want to discuss as a Governing Body/Board with the leadership team how best they can keep you updated with key information without overburdening them. Sometimes a little information often can help you stay informed and enable the Governing Body/Board to make swift decisions where required (because you do not need the same level of briefing to get up to speed).

In the case of maintained schools, Regulation 8 of the School Governance (Roles, Procedures and Allowances) (England) Regulations 2013 sets out the basis on which the Chair (or in their absence the Vice Chair) can take urgent decisions (often called ‘Chair’s Action’). This regulation applies to any decisions that could be taken by a governing body, including those decisions that may delegated by the governing body to an individual and those matters that cannot otherwise be delegated to an individual pursuant to Regulation 19. However, it is worth noting that in relation to exclusions, the DfE’s exclusion guidance limits the sole role of the Chair to those instances where a public exam is imminent at paragraph 57 (link to guidance).

For academy trusts, there is not an equivalent to Chair’s Action as set out in Regulation 8 in the DfE Model Articles. You should therefore check whether you have included an equivalent in your own scheme of delegation (or other governance documentation). If you haven’t documented an equivalent and you want to do so now, then you have two options. First, you could incorporate suitable wording into your Scheme of Delegation. Second, you could pass a Board resolution setting out the provisions for Chair’s Action. We can provide advice on relevant wording and safeguards to adopt if you wish.

For both maintained schools and academy trusts it may, in practice, be simpler for the Chair to call a meeting on short notice, which is then held by telephone conference. This is particularly likely to be the case if the Chair wants others to input into the decision in the circumstances.

In the case of a maintained school, Governing Bodies have some flexibility to make alternative arrangements; for example, the governing body may approve alternative arrangements for governors to participate in or vote at meetings, including, but not limited to, via telephone or video conference.

You should, therefore, check what alternative arrangements, if any, are already in place and if they remain appropriate. If arrangements are not in place or are not appropriate, then you may want to ensure that the Governing Board adopts arrangements to allow for meetings by telephone or video conference.

On a practical note, you should also make sure that all relevant contact details are up to date and can be accessed without visiting the school site.

For academy trusts, you should check your Articles of Association for the exact requirements, but there are likely to be two relevant provisions relating to meetings by telephone or video conference and written board resolutions.

We are running a webinar on effectively holding Governing Body and Board meetings on 26 May and will be providing a downloadable practical written guide for both Governors and Trustees.