Academy trusts and maintained schools are currently operating in unprecedented times and whilst there is a need to ensure that business continues as normal (as far as possible), trustees, members and governors should keep in mind the following key principles:
There should be a clear audit trail for all decisions made during this time.
Please refer to our Educational FAQs which can be found here.
As part of the Government's policy on social distancing (and where relevant, lockdown), Trustee boards will have now adopted alternative arrangements to meeting in person, for example by using video or telephone conferencing applications (for example, by Skype, Microsoft Teams or Zoom). The range of video conferencing facilities is growing fast and an increasing number can be accessed free of charge.
The DfE mainstream Articles (Article 126) allow trustees to attend meetings remotely provided that:
In practice, the academy trust is likely to be organising the dial in arrangements and issuing them to the trustees rather than the other way around. It is however important to ensure that trustees (including any new ones) are comfortable with the proposed arrangements.
We set out below some considerations:
Yes they can. However under the requirements of Article 123, a written resolution must:
The word 'signed' can be interpreted quite widely and can include an electronic mark. It will need to be clear that the relevant Trustee has confirmed their agreement to the resolution and where returns are made electronically, the email will need to be 'authenticated' (ie it will need to have an appropriate footer confirming the identity of the Trustee). A statement confirming the Trustee's intention to authenticate the resolution is useful.
Please do get in touch if you would like advice on the wording of a written resolution and/or help with this.
Not automatically. In contrast to the position for maintained schools where Regulations provide the Chair with this power automatically (often referred to as 'Chair's Action'), the Articles do not have an equivalent provision.
Yes. Under the Articles, the trustees have wide powers of delegation which include the ability to delegate a function to an individual Trustee. Such a power can either be given by a resolution at a meeting or by a written resolution. It is possible that an academy trust's 'scheme of delegation' might already include this power.
Trustees should consider for how long the delegation is required and limit the delegation in that way, for example it might be appropriate to limit the delegation to end at such a time as the government confirms that the UK is 'post pandemic period' (as defined by the World Health Organisation in respect of Covid-19).
We recommend that there be limitations on the circumstances in which the power might be exercised and how it can be exercised, perhaps mirroring the position in the maintained sector. All action taken by the Chair (or Vice-Chair in the Chair's absence), should be reported to the trustees in writing as soon as possible. A record of the decisions taken should also be included with the trustees' minutes.
If you would like assistance with the wording of a suitable term of delegation, please get in touch.
The DfE has urged boards to be pragmatic in what is covered in meetings during this time, and to be proportionate in the decisions in which they are planning to take.
The DfE has also advised that Boards should be prioritising providing support to their school leaders and staff in order to allow them to continue with operational matters. School leaders are urged to stay in touch with trustees in a proportionate way, to ensure that boards can retain a strategic overview of the situation and the school.
In contrast to the position for trustees' meetings, there is no provision in the model Articles for carrying out members' meetings by telephone / video conference.
The Corporate Insolvency and Governance Act 2020 came into force on Friday 26 June 2020, introducing a raft of changes (as promised) to support businesses through the pandemic. The effect of this was:
This time frame has now expired and there has been no extension to allow members meetings to therefore be carried out electronically past 30 March 2021. We await an update from the Government, but the expiry of this legislation means that members' meetings now need to be held in person unless there is provision for virtual members' meetings in the Articles.
In the case of a members' decision, a written resolution is often a quick and easy solution to not having to convene a meeting in order to reach a valid decision and helpfully, unanimity isn't required.
The proposed resolution will need to be sent to every member in office. The number of members who will need to sign and return the resolution will depend on whether the decision in question requires simply majority approval (51%) or special majority approval (75%).
The Articles for many academy trusts won't include any specific requirements to hold general meetings, (albeit that it is advised in accordance with the DfE Governance Handbook). Other academy trusts will be obliged to hold an Annual General Meeting (AGM) for the members (see question below).
As a general principle, the processes and procedures that apply to the trustees of academy trusts (as set out above) will also apply to local governing bodies (LGBs). This is, however, subject to the following:
Trustees and LGBs should carefully review their schemes of delegation and/or terms of reference to ascertain how LGBs will need to proceed with meetings and/or decision-making during this time.
As part of the government's policy on self-isolation and social distancing, governing bodies will need to adopt alternative arrangements to meeting in person, for example by using video or telephone conferencing applications (for example, by Skype, Microsoft Teams or Zoom). As mentioned above, the range of video conferencing facilities is growing fast and an increasing number can be accessed free of charge.
The Governance Regulations (Regulation 14 (8)) allow the governing body to approve alternative arrangements for governors to participate or vote at meetings of the governing body including by telephone or video conference.
Whilst the Regulations do not prescribe any conditions for such alternative arrangements, we recommend that the conditions attached to an academy trust's ability to use telephone or video conferencing are considered:
In practice, the school is likely to be organising the dial in arrangements and issuing them to the governors rather than the other way around. It is however important to ensure that governors are comfortable with the proposed arrangements.
We set out below some considerations:
Yes. The Governance Regulations (Regulation 8) allows the Chair to exercise any function of the governing body which can be delegated to an individual. This is often referred to as 'Chair's Action'.
Governing bodies should note that where the Chair is not able to exercise this function (either through vacancy or otherwise), the function may be exercised by the Vice-Chair.
To exercise this power, the Chair must be of the opinion that a delay in exercising the function would be likely to be seriously detrimental to the interests of:
The DfE has urged governing bodies to be pragmatic in what is covered in meetings during this time, and to be proportionate in the decisions in which they are planning to take.
The DfE has also advised that governing bodies should be prioritising providing support to their school leaders and staff in order to allow them to continue with operational matters. School leaders are urged to stay in touch with governing boards in a proportionate way, to ensure that these governing bodies can retain a strategic overview of the situation and the school.