Academy trusts are charities. They are known as exempt charities, which means that the Secretary of State for Education (acting through the ESFA) is their principal regulator for charity law compliance. As part of its contractual arrangements with academy trusts, the Secretary of State requires academy trusts to follow guidance produced by the Charity Commission. That includes the Charity Commission's guidance on serious incident reporting.
Whilst voluntary and foundation schools are exempt charities under the remit of the Secretary of State as Principal Regulator, there is no clear requirement for them to report under the Serious Incident Guidance.
Community schools are not charities and therefore the Guidance does not apply to them.
Serious incident reports should be made to the ESFA.
Although the guidance on serious incident reporting anticipates reports being made to the Charity Commission, it is because the Charity Commission framed it for the charities it regulates directly. For academy trusts, which are exempt charities, their principal regulator for charity regulation is the Secretary of State for Education. In practice the Secretary of State's regulatory functions in connection with academy trusts is carried out by ESFA.
The Charity Commission's guidance on exempt charities confirms that it does not expect exempt charities to make serious incident reports directly to it, but to follow the requirements for reporting of their own Principal Regulator.
Serious incident reports should therefore be made to ESFA, not to the Charity Commission. ESFA currently receive correspondence here.
According to Charity Commission guidance, a serious incident is an adverse event, whether actual or alleged, which results in or risks significant:
“Significant” means significant in the context of your academy trust, taking account of its staff, operations, finances and/or reputation.
If it meets the threshold for reporting, yes. It is likely to be particularly important to consider:
- to pupils
- to staff or volunteers
- to any other person.
If the harm to which the testimony relates is significant, then it should be reported if it arises from coming into contact with the academy. This can extend beyond school time and events and we recommend carefully considering the degree of connection with the academy. That the person giving testimony considers it connected with the academy should carry considerable weight in the decision as this is the context in which the incident itself was originally understood.
It may impact on the steps the academy can take to investigate, but it does not change the significance of the harm or impact on reputation. It is unlikely to affect the decision to report.
Whether to report is a decision for the directors/trustees of the academy trust as charity trustees, although they may delegate the decision. We can advise you in connection with any decision.
The Commission recommends that in the event of doubt, a report should be made.
A letter to should be sent to this email address.
The report should be full and frank - it should tell the ESFA enough properly to understand what has happened and the level of risk. The report must not be misleading. For example, if a serious allegation has been made, the level of seriousness should be clear. Terms which imply a less serious level of risk should be avoided as they may be misleading.
The purpose of the report is to explain what has happened and to explain how it is being handled. We recommend separate sections in the report to describe what has happened, what is being done to manage what has happened and what is being done to prevent it from happening again. The report should set out the steps taken to meet requirements and best practice of other regulators.
We would be pleased to advise on content for any specific report you are contemplating.
The Charity Commission's guidance recommends that the decision is recorded. In this way, if the ESFA wishes to review the academy trust's approach to reporting, evidence of the decision will be available. The decision should be taken either by directors/trustees (as charity trustees) or by a committee or person to whom management of the matter or reporting has been delegated. The decision should make reference to the thresholds in the Charity Commission's guidance.
As soon as possible. The Charity Commission's guidance does not allow for time to be taken to assess or investigate before reporting. The content of the report must therefore be carefully framed so as to distinguish between the content of any allegation or testimony and what has been established after investigation. It is possible to provide updates.
The ESFA assesses the report. If it is satisfied the academy trust is handling the matter properly, it may ask for updates. We recommend providing updates if there are significant developments or material changes. A significant development might include the publication of a new testimony, social media or press interest. A material change might be finding new evidence which changes the academy trust's understanding of the events as reported.
The ESFA may ask for more information and may engage with the academy trust about the incident and its handling.