New Memorandum of Understanding Between DfE and Charity Commission - What's Changing?

The MOU is not legally binding but it represents a published approach to joint working which has been signed-off by both departments and formalises the approach taken on regulatory compliance issues.

The MOU emphasises that:

• DfE may work with the Charity Commission if it has concerns relating to an independent school which is not meeting the independent school standards.
  
  
• DfE does not have the power to remove trustees (governors), officers, agents and employees or to disqualify trustees, but the MOU expressly makes the point that the Commission does. (Interestingly, it makes no reference to the powers set out in Section 128 of the Education and Skills Act 2008, which do confer powers on the Secretary of State to make orders prohibiting individuals from being involved in the management of independent schools).
  
  
• DfE agrees to keep the Commission informed of regulatory or enforcement action.
  
  
• DfE and the Commission have extensive powers to share information and will use them in respect of schools, establishing channels of communication.
  
  
• Sharing information in the context of public benefit and status is expressly mentioned.

Also worthy of note is that the DfE has agreed extensive input into the Commission's regulatory process in respect of charities of which the DfE is principal regulator, including inviting the Commission to exercise its extensive regulatory powers. Although the DfE is not principal regulator of charitable independent schools, this level of involvement or influence may set the scene for the less formal arrangement where each "may identify potentially serious concerns" and "agree at the earliest opportunity a case strategy" in respect of independent schools.

You should continue to be aware that information about your school is likely to be shared between the DfE and the Charity Commission, including in relation to regulatory compliance and public benefit issues. This could lead to both departments working together on regulatory concerns and the enforcement powers of both regulators being used.

Please contact Andrew Wherrett, in our Charities team, on 0117 314 5269 or Con Alexander on 0117 314 5214 for further information.