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                         NOVEMBER 2009

                           Version 1.41

Version Control:
V1.1    Additions from Alan Gillespie,        December
V1.2    Additions from Nick Wilding and       December
        Admissions                            2009
V1.3    Additions from Gavin Bultitude, Tim   January 2010
        Wetten, Maggie Peck
V1.4    Additions from Maggie Peck, Iain      January 2010
V1.41   Addition from Mark Dickinson
This guide is intended for schools in Suffolk who are considering
changing to Foundation or Trust status. It is hoped that this will
supplement for headteachers and governing bodies information
that may be provided by for example the Department for Children
Schools and Families (DCSF) and the Specialist Schools and
Academies Trust (SSAT).
The Guide provides information about:
 Basic information about Trusts and Foundations
 Making the decision to change status - What schools need to
  think about
 The Trust and Foundation school‟s responsibilities and what to
  expect from the County Council in respect of:
     o Buildings
     o Admissions, and
     o Personnel matters
 Other matters that are relevant to becoming a Trust or
  Foundation School
Basic Information about Trusts and Foundation Schools
A Foundation school is a local authority maintained school that has
decided to take on the additional responsibilities of owning its own
buildings, managing its own admissions and appointing its own
staff. In other respects it is like a community school and the local
authority must treat it no less favourably than any other school it
A Trust School is a Foundation School supported by a Trust. The
Trust is a separate entity from the school and includes a range of
partners who have been invited to join by the school. These
partners will each bring expertise to the Trust and it is for the
school to decide which partners should be approached and why.
The Trust is a formal long-term partnership set up in accordance
with the School Standards and Framework Act 1998. One or more
schools will be part of the Trust. The Trust will appoint governors
to the governing bodies of each of the schools that are part of the
No school may be a formal partner in more than one Trust.
However, a Trust School could be associated with a second Trust.
The DCSF has published a range of information on its website
about changing to Foundation and Trust status. Links to this
information and to other relevant information are provided at the
end of this document.
What is a Trust?
A Trust is a company limited by guarantee with charitable status. It
must generate its own income and any budget it may have is
separate from the school‟s. The Trust may appoint staff, who could
work across the schools within the Trust. However, the Trust
cannot appoint teaching staff. The Trust members can be
individuals or organisations, and the local authority is limited to
20% representation.
Local Authority Policy
The County Council approved a policy statement for Foundation
Schools, Trusts and Academies at the meeting of the Cabinet in
March 2008. The policy on Trusts /Foundations states:
     In Suffolk schools are encouraged to consider Trust status,
     in circumstances where it is agreed by all parties that this will
     be advantageous for the students and communities which
     they serve and where the right partners can be identified.
     The advantages should include raised standards, increased
     opportunities for students and enhanced partnerships with
     local communities. The notion of area-wide partnerships /
     Trusts should also be explored, involving groups of schools
     as appropriate at primary and secondary level, specifically
     with a view to extending the partnerships that already exist
     between schools.
Making the decision to change status
Why would you want to go down the Foundation route?
A school may wish to consider Foundation status if it felt that the
increased autonomy would be of particular benefit in driving
forward its vision for its future development. However, many
schools in Suffolk have chosen only to go down the route of
becoming a Foundation school in order to achieve Trust status and
gain from the benefit that the formal partnerships bring. Schools
should consider what benefits a change of status will bring to their
community in terms of raised educational standards, which is at
the heart of the school‟s work.
In a Trust school, the benefits that each partner will bring should
be spelled out clearly, especially during the set-up phase, so that
the whole community is clear of their value in the partnership.
Schools must realise the additional responsibilities that fall to them
in the areas of staffing, buildings and admissions. More detail on
these responsibilities is given below.
The responsibilities of the Local Authority (Suffolk County Council)
are also described below.
What to do in order to change status
A school planning to change status to Foundation or Trust will
need to go through a series of formal steps. These actions that
need to be taken by a school are explained in detail in the
information provided by DCSF on the School Organisation website
( Schools should note that this
is a legal process and should be followed through usefully. Errors
at any of these stages could result in a challenge to the school‟s
status. The main stages and actions are summarised in the
following table:

    STAGE              PROCESS                            ACTIONS
                 The governing body          The governing body formally
                considers a change of        writes to the LA that it is
                category to foundation;      considering a change of status.
                 initiation of statutory     This must be to the Area Director.
                                             The governing body prepares and
                                             arranges for public consultation
     Stage        The governing body         on the proposal, taking account of
       2         consults on the plans       all views. The governing body
                                             then makes the final decision to
                                             publish a Statutory Notice
                                             It is the legal duty for the
     Stage        The governing body         governing body to publish the
       3          publishes proposals        proposal, ensuring the LA has a
                                             copy of the Statutory Notice.
                                             A period of 4 weeks must be
               Period for representations    allowed for representations to be
                                             The governing body has twelve
                                             months from the date of
                                             publication of the proposals to
                                             make a final decision on the
                                             change of status. Once a decision
                                             is made, the governing body must
                                             inform the LA and Secretary of
                                             State of the decision
     Stage     Proposals are determined      The Governing Body must
       5        by the governing body        prepare a draft Instrument of
                                             Government for the school and
                                             send this to the LA in good
                                             time before the implementation
                                             date as the LA makes the
                                             Instrument of Government. The
                                             school does not acquire
                                             foundation status until the
                                             Instrument is signed.
                                             Where the governing body of a
                                             voluntary aided school approves
                                             proposals to change category to
                 For VA schools only –       foundation, certain persons may
                 possible referral to the    request that these proposals are
                  Schools Adjudicator        referred to the adjudicator, e.g.
                                             the LA, the Diocesan Board of
                                             Education for any diocese of the
                                             Church of England
                                             The date at which the school
                                             changes its status. Governing
                    Implementation           bodies are under a duty to
                                             implement proposals in the form
                                             in which they were approved

It is the duty of the governing body, at the key stages of this
process described above, to keep the LA informed, amongst other
stakeholders, of their intentions and decisions. This will allow a
smoother transition, especially when dealing with the transfer of
assets from the County Council to the newly-formed Foundation or
Trust. The first point of contact for the school is the Area Director,
who must be kept informed at each stage of the process.
Formal advice about the legal process that a school must follow
when moving to Foundation or Trust status is available from the
DCSF (see “useful information” at the end of this document).
All sections will cover the roles and responsibilities of the LA and
school with respect to each area. Each section should point out the
differences between the Foundation and Trusts with respect to
each area.
Transfer of land and buildings.
In the case of Foundation schools the buildings and assets transfer
to the governing body of the school. For Trust schools, land and
buildings transfer to the Trust. There may be some circumstances
where the local authority retains some of the land or buildings
because of use made by the wider community (for example a joint-
use sports centre, or where the school does not have majority use.

As the newly formed Foundation will be responsible for their own
assets, a formal procedure has been set up by the LA to manage
the transfer of these assets from the County Council to the
This is instigated when the governing body, under their statutory
duty, under Stage 1 above, writes to the Local Authority (the
relevant Area Director) to inform that the governing body has
discussed the issue of a change of status from a Community
School to a Foundation School, noting its intended implementation
A small group within the council has been formed to manage the
process of asset transfer. A Surveyor from Corporate Property will
arrange to visit the school to discuss and outline those assets to
be transferred and those that will remain in County Council control.
The precise boundary of the school site(s) will be agreed.

An agreement will be finalised prior to the implementation date,
listing all assets the school will be responsible for and those that
will remain with the County Council. If terms are not agreed by the
implementation date, those matters that have not been agreed will
be referred to the Statutory Adjudicator for adjudication.
On the implementation date the land and buildings that have been
agreed to transfer will transfer whether or not the transfer
documentation is completed. A six months period following that
date is allowed to complete documentation otherwise the matter
will be referred to the statutory adjudicator.
Who will carry out legal documentation and deal with any
legal issues?
Suffolk County Council Legal Services will act for the council in the
transfer and will prepare draft transfer documentation and lead on
any applications to the statutory adjudicator. Legal Services will
draw up the necessary documents to transfer the legal estate in
the school site to either the governing body or the trust as the case
may be.
It will only be necessary for schools to take independent legal
advice if there is a conflict of interest. Usually there will not be any
conflict and Legal Services can act for both parties.
Some schools have chosen to use external solicitors. The council
can provide contact details on request.
Joint User issues – non-transfer of certain facilities, access
As mentioned above, some assets will not be transferred to the
Foundation; these will be identified and agreed prior to the
implantation date. In some cases, the school site boundary may
need to be re-defined to exclude these assets. Matters such as
access, contributions to services etc will all be addressed and

Where there is a substantial facility, such as a Sports Centre,
where revenue funding is provided by the County Council, this will
by default transfer to the Foundation. If the Centre is used by the
community the County Council would expect this arrangement to
continue. If the Foundation decides to limit or exclude the
community altogether, then the revenue funding will be reduced or
stopped by the County Council
The transfer agreement will define all such arrangements and
cover all such matters like shared costs of maintenance, shared
services, shared access routes, shared boundaries etc.

Leases, ownership of land by other parties;

Upon transfer The Foundation school Governors will become the
landlord in respect of any existing third party leases, tenancies,
licences. In the case of a Trust, the Trust Governing Board will
become the landlord.

The Foundation school will be able to grant leases, tenancies,
licences etc. The school will need to consult with the council prior
to carrying this out and the council can challenge on the grounds
of principle or terms. If the parties fail to reach agreement, the
matter can be referred to the government‟s appointed statutory

Disposals of an interest in land or premises
A Trust or Foundation School that wishes to dispose of land or
property will need to consult with the council and the council can
challenge on the grounds of principle or terms.
Any disposal would be subject to normal planning laws and, for
playing fields, Section 77 of the 1996 Education Act, where
disposal would require approval of the Secretary of State for
Children, Schools and Families.

A Foundation or trust school will be entitled to 80% rate relief with
the remaining 20% discretionary on the relevant local authority.
The council will make the necessary approach to the rating
authority on the school‟s behalf. Such applications are always in
arrears so there will be a period of adjustment required. However,
please see finance section below.
Buildings Insurance and fire risk
Schools can continue to opt to purchase buildings and liability
insurances through the County Council‟s schemes. In the event of
a serious fire, the County Council will continue to fund any
excesses that form part of the insurance scheme.

Health and Safety
The LA will continue to provide Health and Safety advice to
schools and they are strongly advised to manage the school in
accordance with this advice. The management of the school
should continue to monitor matters relating to Health and safety,
and the governing body should continue to ensure that procedures
are in place. If schools choose not to follow this guidance they
must have an alternative source of guidance and be able to
demonstrate how health and safety matters are being dealt with.
Ultimately, schools not following the local authority‟s advice could
be liable to prosecution in the event of an incident unless they can
demonstrate that appropriate health and safety guidance has been
The Governing Body is responsible for health and safety of pupils,
staff, contractors and any other person affected by the work of the
school. However, since this is already a key responsibility for
schools it should not become a more onerous duty. The LA will
continue to provide Health and Safety advice to schools and they
are strongly advised to manage the school in accordance with this
advice. The management of the school should continue to monitor
matters relating to health and safety, and the governing body
should continue to ensure that procedures are in place. If schools
choose not to follow this guidance they must have an alternative
source of guidance and be able to demonstrate how health and
safety matters are being dealt with.
Although the county council will continue to make its advice
available to schools, the governing body will have to appoint
(though, not necessarily, employ) a competent person to assist it in
undertaking the measures it needs to take to comply with the
statutory requirements and prohibitions and particularly by the fire
safety legislation. Making the appointment is a statutory
requirement and it must be recorded formally, probably in the
school‟s health and safety policy statement. Foundation and Trust
schools may appoint the County Council as its competent „person‟,
but cannot appoint any individual employee of the county council
without the written permission from the authority.
Ultimately, governing bodies could be liable to prosecution in the
event of a breach of any statutory duty. However, it will be a
defence against any charge if the school can demonstrate that
appropriate health and safety guidance has been followed and
satisfactory systems of work are in place.