The green light has now been given for maintained schools to become Academies. The Academies Bill was approved by the House of Commons on 27 July and received Royal Assent on 28 July 2010 to become the Academies Act 2010. The Act not only empowers maintained schools to convert into Academies but also constitutes the enabling legislation for ‘free schools’ (although there is no reference to ‘free schools’ in the Act).

For schools that submitted their applications before the Act came into force, their applications are to be treated as an application for an Academy Order under the Act.

The Act remains substantially in the same form as the Bill but there have been some additional provisions:

• Obligations in relation to pupils with special educational needs which are equivalent to those imposed on maintained schools.
• Funding obligations for children with "low incidence" special educational needs or disabilities (section 2(5)).
• New duties to consult with "appropriate persons" on the conversion of the school to an Academy (section 5) and in relation to the establishment of an ‘additional’ school (section 10).
• An obligation on the Secretary of State, when deciding whether to enter into Academy arrangements in relation to an additional school, to take into account the impact that establishing an additional school is likely to have on maintained schools in the area (section 9).
• An obligation on the Secretary of State to prepare, and publish, a report containing information on the Academy arrangements that have been entered into during the year and the performance of the Academies established during that year. The first report must relate to the academic year beginning 1 August 2010 (section 11(1)).

There are also commitments to provide in the funding agreement:

• for two parent governors on the board of governors of each Academy; and
• for each Academy to have a designated member of staff for looked after children.

Although schools must now consult "appropriate persons", the Act still does not include a requirement to consult local authorities before entering into an Academy agreement. But the Secretary of State has established a ministerial advisory group on the future role of local authorities and has written to all local education authorities seeking their views.

It remains to be tested whether consultation with ‘appropriate persons’ after an order to converthas been granted by the Secretary of State (as permitted by clause 5(3)) is ‘fair’ under common law rules.

One effect of the Act is that, although Academy proprietors will be charities, they will be exempt from registering with the Charity Commission. This will also apply to existing Academies and so when the relevant section of the Act comes into force the Charity Commission will have to remove all existing Academies from its register. We understand that the YPLA will become the Principal Regulator of Academies for charity law purposes. It will therefore have responsibility for monitoring compliancewith charity law as well as its other regulatory functions. Many of the Charity Commission’s powers will, nevertheless, still apply to Academies.

For further information please contact Mary Groom at m.groom@bwbllp.com or on 020 7551 7616.