Collaboration between schools: Rising to current challenges

These challenges come alongside curriculum reform and the introduction of a new, more demanding Ofsted framework, which places additional pressure on schools across the board. In this context, collaboration between schools - including academies, maintained schools, and specialist settings - may provide a vital opportunity to share expertise, resources, and innovative approaches, helping all schools rise to these challenges and deliver the best possible outcomes for their students

Can a collaboration be informal?

Academy trusts and maintained schools have long since shared resources informally, perhaps in a soft federation for maintained schools or a partnership between trusts. Often this has taken place without recording anything in writing. Depending on what was being shared, this may have sufficed. However, it is good practice to consider the nature of the arrangement at the outset and confirm this in writing, even if it is intended to be informal, as a verbal agreement can be contractually binding. It will help to consider where responsibilities lie, any risks that may arise and how these will be managed.

How do we record things in writing?

A Memorandum of Understanding (MoU) can be a good way of recording the key terms of a collaboration. Where the arrangement will be informal with few risks, it may be decided that the MoU will be expressed as not contractually binding on those involved. Note, though, that just because a document is called an 'MoU' doesn't mean it can't form a binding contract between those participating in the collaboration.

Where the nature of the collaboration and the risks involved become more significant (for example, the school or trust is sharing staff or is otherwise taking on risk and/or liability), it is advisable for the MoU to be contractually binding or for those involved to enter into a more formal agreement setting out the terms of the arrangement in more detail. This could involve additional documents such as a joint employment contract or secondment arrangements and advice may be required on matters such as employment status, tax and pensions. DfE consents might also be required.

These types of arrangements can be appropriate where a trust and maintained school or academy wish to work together, while exploring the school or academy joining the trust, perhaps with the school or academy operating as an 'associate' or 'partner' of the trust.

Do we need to think about the money?

Where money will change hands, it will be important to consider if the money can be used as intended. Grant funding may only be used for its stated purpose which, in the case of general annual grant, is for an academy trust to operate its academies. Similar legislative restrictions with some exceptions apply to the budget share in the maintained sector. Where the collaboration will involve the use of funds beyond the maintained school and/or academy trust, it may therefore be necessary to draw on other sources of income.

What are the governance options?

It is also helpful to consider how the collaboration will be governed, not just by each maintained school and/or academy trust managing their own responsibilities but by having joint oversight. This is where understanding the governance of maintained schools and academy trusts helps in identifying all available options for a collaboration.

The governing bodies of maintained schools can already establish a joint committee to discharge their functions, with an academy trust participating as an associate member. An academy trust may also establish a committee with representatives from another trust and/or maintained school provided the trustees are in the majority. The best option will depend on the nature of the collaboration and the relationships involved.

Academy trusts and maintained schools may also co-opt representatives on to their board or governing body for a specific purpose or project. An academy trust may decide to co-opt representatives onto the local governing body for an academy where the collaboration is specific to that locality.

Care will need to be taken where it is intended that representatives will become an 'associate' governor or trustee of the other maintained school or academy trust. The articles of association for an academy trust do not allow an associate trustee while maintained school legislation defines permitted categories of governor. That said, it may be that the terms of reference for the local governing body of an academy allow for, or can be updated to include, an associate governor with defined rights for that role.

Can we do something more formal?

Where a collaboration will work best under a single legal structure, maintained schools can form a hard federation under a single governing body which owns and manages the assets of the participating schools in the same way as any individual governing body. Where the schools are foundation or voluntary-aided, the federated governing body will also employ the staff, allowing it to work with employees in the school group in keeping with national terms and conditions. A community or voluntary-controlled school will need to change category in order to employ and manage staff in this way.

The academy trust model is well known for enabling academies to collaborate by sharing resources, expertise and efficiencies of scale within a single legal entity where the trust can engage with, and be accountable to, their communities through local governing or advisory bodies which work with individual or grouped schools.

What about other structures?

Academy trusts can work with others by forming a trading subsidiary to carry on activities which do not further, and are not ancillary to furthering, their charitable objects or where they wish to ring-fence the risks in a separate legal entity, such as in providing facilities management services to other schools and trusts.

Maintained schools can also form companies by themselves or with academy trusts and other education providers for the purposes of providing or receiving facilities or services, subject to certain conditions prescribed by the Education Act 2002 and the School Companies Regulations 2002 (as amended) and the requirements of procurement legislation governing purchases by trusts and schools as contracting authorities. These conditions and requirements make this a complex area which requires specialist legal advice.

In summary

Whatever the circumstances, there are a number of available options for how a collaboration can be implemented in practice. The different routes enable collaboration within and between academy trusts and maintained schools which is good news for pupils and their communities as the sector works together for the common good. Whichever option is chosen, the collaboration needs to be considered carefully at the outset to ensure any risks, the responsibilities of everyone involved and any legal issues are managed, taking specialist legal advice as appropriate so that the collaboration can be a success.