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Guide to the Law for School Governors Word - 1

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Guide to the Law for School Governors Word - 1

     CONTENTS

    Chapter 1. Introduction Page 1 Chapter 2. Constitution of Governing Bodies Page 3

    Chapter 3. Governing Body Powers, Duties and Page 11

    Procedures

    Chapter 4. Support and Training for Governors Page 25

    Chapter 5. Governing Body Federation and Page 29

    Collaboration

    Chapter 6. The Early Years Foundation Stage and the Page 43

    National Curriculum

    Chapter 7. Children with Special Educational Needs and Page 59

    Other Vulnerable Children

    Chapter 8. The School Budget Page 73

    Chapter 9. School Premises and Capital Investment Page 79

    Chapter 10. Staffing Page 85

    Chapter 11. School Improvement Partners and School Page 107

    Self-evaluation

    Chapter 12. Admissions Page 109

    Chapter 13. Behaviour and Attendance Page 121

    Chapter 14. Inspection Page 135

    Chapter 15. Schools Causing Concern Page 141

    Chapter 16. Health, Safety and Welfare Page 149

    Chapter 17. Equal Opportunities and School Governors Page 163

    Chapter 18. Organisational Changes to the School Page 175

    Chapter 19. Trust Schools Page 181

    Chapter 20. Parent Councils Page 187

    Chapter 21. Control and Community Use of School Page 191

    Premises

    Chapter 22. Extended Schools Page 195

    Chapter 23. Charging for School Activities Page 199

    Chapter 24. School Companies Page 203

    Chapter 25. Providing Information Page 205

    Annex 1. Glossary Page 221

    Annex 2. Policies and Other Documents that Page 237

    Governing Bodies are Required to

    Have by Law

    Index Page 241

    0 January 2010 ? Crown copyright. First edition of 2010.

1 INTRODUCTION

    The purpose of the Guide

    1. This is the thirteenth edition of A Guide to the Law for School Governors, and the fifth to

    be issued in CD-ROM format.

    2. All school governors need to know what their legal responsibilities are and how these fit in

    with the responsibilities of the headteacher, the Local Authority (LA) and the Secretary of

    State for Children, Schools and Families. This Guide explains what the law says and how

    it affects governors. It should be read alongside the Law and Guidance sections listed at

    the end of each chapter, and any information on governance provided by the LA. In this

    edition, information can be found on:

     community schools, including community special schools and maintained nursery

    schools (MNS);

     foundation schools, including foundation special schools and Trust schools;

     voluntary aided schools;

     voluntary controlled schools.

    3. It must be stressed that this Guide cannot replace the law, and it is not possible to offer a

    full explanation of the law. If specific problems arise, governing bodies may want to seek

    advice from their LA or obtain their own legal advice.

    4. This Guide has been revised to incorporate the changes that were current at 1 January

    2010, but it may also refer to regulations that will be introduced at a later date.

    5. At first sight, the range of responsibilities described in the Guide may seem daunting.

    However, governors do not need to be experts to tackle them. Help and advice is

    available from various sources in addition to this Guide. The headteacher of your school

    and officers of the LA can provide professional advice and support, while the clerk to your

    governing body will also be able to help. Governors can develop their own knowledge

    through training schemes and other materials available locally and nationally.

    Using the Guide

    6. The main text refers to community schools (including community special and maintained

    nursery schools) and is mostly generic for all other categories. Where paragraphs or

    information refer only and specifically to other categories of school, they are flagged in the

    margin as:

     VA: voluntary aided

     VC: voluntary controlled

     F: foundation, including foundation special.

    Where the breakdown of information is more complex, the differences will be explained in

    the text without the use of flags.

    7. Throughout the Guide, the term Local Authority (LA) is used instead of Local Education

    Authority (LEA) to describe the councils listed in Section 12 of the Education Act 1996,

    which have responsibility for providing education to pupils of school age in their areas

    (county councils where there is a two-tier system of government, otherwise unitary

    authorities). Where terms are referred to that are defined in legislation, for example “LEA

    governor”, the term Local Education Authority (LEA) is still used.

    8. All references in the Guide to “the headteacher” include the acting headteacher at any

    time when the school does not have a permanent headteacher, or when an acting

    headteacher has been appointed in the absence of the headteacher.

    9. At the end of each chapter of the Guide there is a reference section listing where

    1 January 2010 ? Crown copyright. First edition of 2010.

1. INTRODUCTION

    governors‟ rights and duties are set out in legislation. Acts and regulations referred to can

    be ordered from bookshops, accessed on the GovernorNet website at

    www.governornet.co.uk, the Office of Public Sector Information website at

    www.opsi.gov.uk or the Stationery Office‟s publications website at www.tso.co.uk

    10. At the end of the Guide you will find a brief glossary and a list of all written policy

    statements that governing bodies should have.

    Obtaining copies of the Guide and other documents

    11. Copies of all the circulars mentioned in the Guide have been sent to your school. It is also

    possible to obtain copies of these and other Department for Children, Schools and

    Families (DCSF) publications from: Department for Children, Schools and Families

    Publications, PO Box 5050, Sherwood Park, Annesley, Nottingham NG16 0DJ (tel: 0845

    602 2260, fax: 0845 603 3360, minicom: 0845 605 5560, email: dcsf@prolog.uk.com). All

    Departmental publications are free unless a price is shown.

    12. As changes are frequently introduced, and it is important that governors have current

    guidance, we will issue a new CD-ROM version of the Guide twice yearly. We will also

    maintain an up-to-date Guide on the GovernorNet website (www.governornet.co.uk).

    13. The DCSF believes that each member of a governing body needs to have his or her own

    copy of the Guide. Please contact the DCSF Publications Centre (see paragraph 11,

    above) to order extra copies.

    Other resources for governors

    14. Up-to-date information on all aspects of school governance is available on GovernorNet the

    DCSF website for governors. It includes numerous sources of reference, legislation and a

    discussion board where governors can share information and experiences. GovernorNet can be

    accessed at www.governornet.co.uk. Free professional and confidential advice and assistance is

    also provided by GovernorLine at www.governorline.info (tel: 08000 722 181).

    For more information and details of other organisations offering training, support and guidance to

    governors, see the entry at the end of chapter 4 of this Guide (Support and training for

    governors).

    15. Other useful websites include TeacherNet (www.teachernet.gov.uk) and the DCSF

    website (www.dcsf.gov.uk). It is not possible to list every website on which governors can

    access information. However, the Department is working towards merging GovernorNet

    and TeacherNet to form a single, all-encompassing new website.

    16. When TeacherNet and GovernorNet are merged into this new site, users will be

    automatically redirected to it for some time. In the meantime, if more information on DCSF

    policy is required, the various websites can be accessed via the “A to Z” search facility on

    the DCSF website (www.dcsf.gov.uk).

     2 January 2010 ? Crown copyright. First edition of 2010.

    2 CONSTITUTION OF GOVERNING BODIES

CHAPTER SUMMARY

    The aim of this chapter is to explain the way governing bodies are formed, as set out in the School Governance (Constitution) (England) Regulations 2007 the

    “Constitution Regulations”. Guidance to the Constitution Regulations can be found

    on GovernorNet.

    1. All governing bodies of community, community special, foundation (F) (including qualifying foundation schools, foundation schools with and foundation schools without a foundation), foundation special, voluntary aided (VA), voluntary controlled (VC) and maintained nursery schools (MNS) can adopt a model for the size and membership of their governing body that best suits their circumstances.

    2. The size of the governing body ranges from a minimum of 9 to a maximum of 20 people, except in VA schools and qualifying foundation schools where the minimum size of the governing body is to be 10 and 11 respectively. Within this range, each governing body can adopt the model of their choice, provided it complies with the guiding principles outlined in the following section. The only exceptions are:

     in primary schools, where the governing body can appoint one or two sponsor

    governors, and in secondary schools, where the governing body can appoint up to

    four sponsor governors. These governors do not count towards the maximum size; in a VA school or a qualifying foundation school, where the governing body

    appoints sponsor governors. In these cases the same number of foundation

    governors may be appointed to preserve their majority. The maximum size of a

    governing body at a VA and qualifying foundation primary school is 24 (20 plus two

    sponsor governors, plus two foundation governors to preserve the majority of two).

    The maximum size of a governing body at a VA and qualifying foundation

    secondary school is 28 (20 plus up to four sponsor governors, plus up to four

    foundation governors to preserve the majority of two).

THE GUIDING PRINCIPLES

    3. The guiding principles prescribe which categories of governor must be represented on the governing body and what the level of representation is for each of the categories. There are four compulsory stakeholder groups for community and community special schools as well as MNS and VA schools. Foundation and VC schools have five compulsory stakeholder groups. Sponsor governors form an optional group. The proportion of places on the governing body that must be reserved for the different categories is shown in the table in paragraph 24 (below).

PARENT GOVERNORS

    4. Parents (including carers) of registered pupils at the school are eligible to stand for election for parent governorship at the school. In the case of MNS, any parent (or carer) of a child who is making use of the service provided by the nursery is eligible to stand for election for parent governorship at the school. Parent governors are elected by other parents at the school. If insufficient parents stand for election, the governing body can appoint parent governors.

    “Parent” is defined for the purposes of the Constitution Regulations as including “any individual who has or has had parental responsibility for, or cares or has cared for, a child or young person under the age of 18”. It includes a person who the child lives with and

    who looks after the child, irrespective of what their relationship is with the child. The reference in the definition must be to someone involved in the full-time care of the child on a settled basis.

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2. CONSTITUTION OF GOVERNING BODIES

    5. For community, community special and VC schools, and MNS, the Local Authority (LA)

    has the responsibility for arranging the elections, though it can delegate this to the

    headteacher.

    6. For foundation, foundation special and VA schools, the governing body has the

    responsibility for arranging the elections, though the governing body can agree with the VA LA for it to make the arrangements (again, the LA can delegate to the headteacher). F

    7. Schools must make every reasonable effort to fill parent governor vacancies through

    elections. If insufficient parents stand for election the governing body can appoint:

     a parent of a registered pupil at the school, or if that is not possible;

     a parent of a former pupil at the school, or if that is not possible;

     a parent of a child of, or under, compulsory school age.

    This also applies to community special schools and foundation special schools, but

    for these schools the appointment criteria are:

     a parent of a registered pupil at the school, or if that is not possible;

     a parent of a former pupil at the school, or if that is not possible;

     a parent of a child of or under compulsory school age with special educational

    needs for which the school is approved, or if that is not possible;

     a parent with experience of educating a child with special educational needs.

    8. A person is disqualified from election or appointment as a parent governor of a school if

    they are an elected member of the LA, or if they work at the school for more than 500

    hours in any consecutive 12-month period (at the time of election or appointment). If a

    serving parent governor subsequently starts to work at the school for more than 500 hours

    in a consecutive 12-month period, they would serve out their term of office.

     STAFF GOVERNORS

    9. Both teaching and support staff paid to work at the school are eligible for staff

    governorship. Staff governors are elected by the school staff and must be paid to work at

    the school volunteers are ineligible. Any election that is contested must be held by

    ballot.

    10. At least one staff governor (in addition to the headteacher see paragraph 11 below)

    must be a teacher, but if no teacher stands for election, a member of the support staff

    can be elected to take that place. If a governing body has three or more staff governor

    places, at least one staff governor must be a member of the support staff, but if no

    member of the support staff stands for election, a teacher can be elected to take that

    place.

    11. The headteacher is a member of the governing body by virtue of their office and counts in

    the member of the staff category. If the headteacher decides not to be a governor, he or

    she must inform the clerk of that decision in writing. The headteacher‟s place remains

    reserved for him or her and cannot be taken by anyone else.

    12. School staff that are eligible for election as staff governors (i.e. who are paid to work at the

    school) are not eligible to serve as Local Education Authority (LEA) governors or

    community governors at their school. If they are paid to work at the school for more than

    500 hours in any consecutive 12-month period they are not eligible for election or

    appointment as parent governors. However, staff can vote in parent governor elections if

    they are parents. They can also be governors at other schools. Their employment status

    will not affect their qualification for governorships in these categories at another school.

    LOCAL EDUCATION AUTHORITY (LEA) GOVERNORS

    13. LEA governors are appointed by the LA. LAs can appoint any eligible person as an LEA

    governor. A person is disqualified from appointment as an LEA governor if they are

    eligible to be a staff governor of the school.

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    2. CONSTITUTION OF GOVERNING BODIES

    COMMUNITY GOVERNORS `

    14. Community governors are appointed by the governing body to represent community

    interests. Community governors can be people who live or work in the community

    served by the school, or people who do not work or live close to the school but are

    committed to the good governance and success of the school.

    15. In community special schools and foundation special schools, the governing body must

    appoint as one of the community governors a person (if any) nominated by one or more

    voluntary organisations designated by the LA. If the school is based in a hospital, the

    community governor must be nominated by one or more primary care trusts, the

    National Health Service (NHS) trust or NHS foundation trust.

    16. A person is disqualified from appointment as a community governor if he or she is

    eligible to be a staff governor at the school, or is an elected member of the LA to which

    the school belongs.

    FOUNDATION AND PARTNERSHIP GOVERNORS

    17. Foundation governors are appointed by the school‟s founding body, church or other

    organisation named in the school‟s instrument of government. They may hold their VA governorship in an ex officio capacity if they are the holder of an office specified in the VC F instrument of government, for example a parish priest. If the school has a religious

    character the foundation governors must preserve and develop this. They must also

    ensure compliance with the trust deed, if there is one. If there is more than one body

    that has the right to appoint foundation governors, the instrument of government

    specifies the bodies concerned and the basis on which appointments are made.

    18. If the school has no foundation or equivalent body, the foundation governors are

    replaced by partnership governors appointed by the governing body after a nomination F process. The governing body must ask parents of registered pupils at the school, and

    others in the community it considers appropriate (for example, staff, community

    organisations and other local bodies), to provide nominations for partnership governors.

    19. Parents of registered pupils at the school, staff eligible to be staff governors, elected

    members of the LA and those employed by the LA in connection with education

    functions are not eligible to be partnership governors.

    SPONSOR GOVERNORS

    20. Sponsor governors are appointed by the governing body. It is at the governing body‟s

    discretion whether they choose to appoint sponsor governors or not. If the governing body

    wants to appoint one or more sponsor governors, it must seek nominations from the

    sponsor(s).

    21. The sponsor can be someone who gives substantial assistance to the school, financially

    or in kind, or who provides services to the school. The governing body can appoint a

    maximum of two persons as sponsor governors, or where the school is a secondary

    school, up to four sponsor governors.

    ASSOCIATE MEMBERS

    22. The governing body can appoint associate members to serve on one or more governing

    body committees and attend full governing body meetings. The definition of associate

    member is wide and pupils, school staff and people who want to contribute specifically

    on issues related to their area of expertise (for instance, finance) can be appointed as

    associate members.

    23. Associate members are appointed as members of any committees established by the

    governing body. They are appointed for a period of between one and four years and can

    be reappointed at the end of their term of office. Associate members are not governors

    and they are not recorded in the instrument of government.

    5 January 2010 ? Crown copyright. First edition of 2010.

2. CONSTITUTION OF GOVERNING BODIES

     PROPORTION OF GOVERNOR PLACES BY CATEGORY AND TYPE OF SCHOOL

    24. This table shows the proportion of places that should be allocated to a governing body.

     Category of governor

    Foundation/ Type of school Parent Staff LEA Community Partnership

    At least two, Community, but no more community At least At least one?third than one?third, One?fifth special, maintained one?fifth including the nursery school headteacher

    At least two, Foundation, At least At least two, but no more foundation special one, but no At least but no more At least one?third than one?third, (without a more than one?tenth than including the foundation) one?fifth one?quarter headteacher

    Foundation, At least two, At least foundation special but no more At least two, one, but no At least (with a foundation) At least one?third than one?third, but no more more than one-tenth but not qualifying including the than 45% one?fifth foundation schools headteacher

    At least one, but

    enough to total at At least two, They must least one-third At least Qualifying but no more outnumber the when counted one, but no At least foundation than one?third, other with foundation more than one-tenth schools including the governors by governors who one?fifth headteacher up to two are eligible to be

    parent governors

    At least one, but

    enough to total at At least two, They must least one?third At least but no more outnumber the when counted one, but no Voluntary aided than one?third, other with foundation more than including the governors by governors who one?tenth headteacher two are eligible to be

    parent governors

    At least two, At least At least two, but no more one, but no At least but no more Voluntary At least one-third than one?third, more than one-tenth than controlled including the one?fifth one?quarter headteacher

    Proportions and percentages must be rounded up or down to the nearest whole number.

    Examples of constitutional models can be found in Annex A of the Statutory Guidance on

    the School Governance (Constitution) (England) Regulations 2007.

    TERM OF OFFICE

    25. The maximum term of office for all categories of governor is four years, but the governing

    body can decide to set a shorter term of office for one or more categories of governor.

    This does not apply to the headteacher or to any additional governors appointed by the LA

    or the Secretary of State for Children, Schools and Families. If the term of office for a

    particular category of governor is to be shorter than four years, this has to be recorded in

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    2. CONSTITUTION OF GOVERNING BODIES

    the instrument of government. The term of office cannot be shorter than one year and

    cannot be varied for individual governors. Any governor may, at any time, resign by giving

    written notice to the clerk.

    REMOVAL FROM OFFICE

    26. The governing body may remove from office:

     community governors or partnership governors;

     any parent governor who has been appointed, but not an elected parent governor.

    (A parent governor is considered to be elected if he or she stood for election for

    parent governorship. Whether or not a ballot took place is not relevant to this issue);

     any sponsor governors. (It may also do so at the request of the nominating body.);

     any associate member.

    27. LEA and foundation governors may be removed from office by the person who appointed

    them. The person who appointed them must give written notice to the clerk to the

    governing body, and the governor in question, of the governor‟s removal.

    N.B. The governing body may not remove any staff governors.

    PROCEDURE FOR REMOVAL

    28. Reasons for proposed removal of any community governor, partnership governor,

    appointed parent governor or sponsor governor must be given by the governor(s)

    proposing the removal. The governor in question must be given the opportunity to make a

    statement in response before a vote is taken on a resolution to remove him or her.

    29. In the case of the removal of a community governor nominated by a voluntary

    organisation, primary care trust, NHS trust, NHS foundation trust, or sponsor governor

    proposed for removal at the request of the nominating body, the nominating body

    proposing the removal must inform the clerk to the governing body. The governor in

    question must also be notified in writing of the reasons for proposing his or her removal.

    The clerk to the governing body must give the reasons for the proposed removal to the

    governing body, and the governor proposed for removal must be given the opportunity to

    make a statement in response, before a vote is taken on a resolution to remove him or

    her.

    30. The same procedure applies to the removal of an ex officio foundation governor, except

    that it is the person requesting the removal of the ex officio foundation governor who must VA VC inform the clerk and the governor in question. F

    31. A governing body‟s decision to remove any community, partnership, sponsor or appointed

    parent governor must be confirmed at a second meeting not less than 14 days after the

    first meeting. At both meetings the removal of the governor in question must be specified

    as an item of business on the agenda.

    32. The removal of an ex officio foundation governor must follow the procedure outlined in the VA above paragraph. VC F INSTRUMENT OF GOVERNMENT

    33. The instrument of government is the document that records the name of the school and

    the constitution of its governing body. The governing body drafts the instrument and

    submits it to the LA. The LA must check if the draft instrument complies with the statutory

    requirements, including the relevant guiding principles for the constitution of governing

    bodies. If the instrument complies with the legal requirements, the LA will make the

    instrument. The governing body and LA can review and change the instrument at any

    time.

    34. Before the governing body submits the draft instrument to the LA, it has to be approved by

    the foundation governors and, where relevant, any trustees and/or the appropriate F

    religious body.

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    2. CONSTITUTION OF GOVERNING BODIES

    35. For community special schools and foundation special schools, the instrument should also record the name of the body that has the right to nominate a person for appointment as a community governor.

SURPLUS GOVERNORS

    36. If on a reconstitution of the governing body there are more governors in a particular category than are recorded in the instrument of government, the governor(s) of that category may serve out their term of office. This does not apply to a change of school category. When a school changes category and there are more governors in any of the categories of governors than in the new instrument of government and that excess is not eliminated by governors resigning, the surplus governors must cease to hold office immediately. The governors who are to cease to hold office are to be determined on the basis of the shortest period of continuous service. Where there is equal seniority, removal will be determined by drawing lots. See the Schedules to the School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2007.

QUALIFICATIONS AND DISQUALIFICATIONS

    37. Schedule 6 of the Constitution Regulations covers the qualifications and disqualifications of governors.

    38. A governor must be aged 18 or over at the time of his or her election or appointment and cannot be a registered pupil at the school. A person cannot hold more than one governorship at the same school.

    39. A person is disqualified from holding or from continuing to hold office as a governor or associate member if he or she:

     is detained under the Mental Health Act 1983 during his or her period of office;

     fails to attend the governing body meetings without the consent of the governing

    body for a continuous period of six months, beginning with the date of the first

    meeting missed (not applicable to ex officio governors);

     is subject to a bankruptcy restriction order or an interim order;

     has had his or her estate sequestrated and the sequestration order has not been

    discharged, annulled or reduced;

     is subject to:

    i) a disqualification order or disqualification undertaking under the Company

    Directors Act 1986

    ii) a disqualification order under Part 2 of the Companies (Northern Ireland) Order

    1989

    iii) a disqualification undertaking accepted under the Company Directors

    Disqualification (Northern Ireland) Order 2002

    iv) an order made under Section 492(2)(b) of the Insolvency Act 1986 (failure to

    pay under a County Court administration order);

     has been removed from the office of charity trustee or trustee for a charity by the

    Charity Commissioners or High Court on grounds of any misconduct or

    mismanagement, or under Section 34 of the Charities and Trustees Investment

    (Scotland) Act 2005 from participating in the management or control of any body; is included in the list of people considered by the Secretary of State as unsuitable

    to work with children;

     is disqualified from working with children or subject to a direction under Section

    142 of the Education Act 2002;

     is disqualified from registration for childminding or providing day care; is disqualified from registration under Part 3 of the Childcare Act 2006;

     has received a sentence of imprisonment (whether suspended or not) for a period

    of not less than three months (without the option of a fine) in the five years before

    becoming a governor or since becoming a governor;

     has received a prison sentence of two-and-a-half years or more in the 20 years

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    2. CONSTITUTION OF GOVERNING BODIES

    before becoming a governor;

     has at any time received a prison sentence of five years or more; has been fined for causing a nuisance or disturbance on school premises during

    the five years prior to or since appointment or election as a governor; refuses to allow an application to the Criminal Records Bureau for a criminal

    records certificate.

THE LAW

    The Education Act 2002: Sections 19 and 20

    The School Governance (Constitution) (England) Regulations 2007: SI 2007/957

    The Education Act 1996: Section 576 (1), (3) and (4), read together with the Education Act 2002: Section 212(2), gives a definition of “parent” (see also the definition of parent in the Constitution Regulations)

    The School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2007: SI 2007/1289

    9 January 2010 ? Crown copyright. First edition of 2010.

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