The Model Documents
What model documents are there for Church of England schools?
The Model Documents can all be found on the DfE website.
They comprise 3 versions of the Memorandum and Articles (as described above), a model lease, the crucial Supplemental Agreement and an optional Members Agreement. The Funding Agreement contains options that must be selected correctly for the VA, VC or Foundation context.
VA converters should use Model 1 (unless by exception they prefer Model 3 as set out above). VC and Foundation minority converters must use Model 2 Foundation majority converters should use Model 1with some emendations.
The Models are drafted to enable schools to select appropriately for their local situation e.g. in respect of incumbents, area deans and other corporate persons to be included as members and/or governors. In theory schools could seek to make other major changes. However the National Society strongly advises that schools use the models as written. To do otherwise will (a) incur extra costs to be met by the school and (b) may result in company structures that cannot preserve the character of the school or protect the trusts upon which the land is held (c) may not be acceptable to the DfE, which has done a considerable amount of work to develop these models.
The Supplemental Agreement is an agreement between the diocese, the Secretary of State and the academy company which regulates the relationship between them. It is an essential part of the document package and has been developed to safeguard the concept of conversion “as is” so that the character of the school and the position of its trustees may be protected. It has been approved by the DfE and reflects the existing statutory powers of DBEs and trustees and meshes in properly with the Memorandum and Articles and, where used, the lease.
The National Society advises dioceses and trustees that they should not agree to conversion of a school without the Supplemental Agreement nor be prepared to modify it without taking national legal advice. The DfE will also not agree to conversions of Church of England schools without it. If any conversion seems likely without a Supplemental Agreement dioceses must inform the Society as a matter of urgency.
A lease is not normally needed to make the trustees’ land available to the academy as they can continue to make the land available by informal licence as in all voluntary schools. No change is needed. If the DfE insists on a lease then legal advice should be taken and the requirement should be resisted as not representing “as is”. A model lease has been agreed and can be used without major detriment provided that care is taken to lease separately any residential property. The issue of a lease is closely connected to the notion of public value in trustees land. VA capital grant (LCVAP) and Building Schools for the Future/Primary Capital Programme funding are not counted as producing public value, so none will exist in most VA schools. However, there will be some in almost all VC schools. This is a separate matter from the common fact that some of the site (usually the playing fields) will be owned by the LA and made available by them under a lease to the academy company.
No documentary lease or licence is required at all. A written licence could be provided if it is thought necessary in some local circumstances.
The DfE may insist on a lease in some circumstances. This should be very rare.
The National Society advises that the model lease should be used as it stands and that legal advice should be taken (and the Society informed) if any changes are proposed.
It is an agreement between the members of an academy company where the Church of England has only minority membership (Model 2 Memorandum and Articles conversions). It is not required in majority members (Model 1 or Model 3 Memorandum and Articles) conversions. It offers further protection to the maintenance of the character and ethos of the school. Its main value is to make clear to the academy company that it has responsibilities in these matters that cannot be avoided and to provide mechanisms for remedy that are less draconian than those contained in the Supplementary Agreement. The Members Agreement is voluntary but once agreed can be enforced. The National Society recommends its use in all situations where church membership of the academy accompany is in the minority and suggests that its provisions are helpful to the non-church members in that they provide clarity and means of redress that are less draconian than those (unavoidable) measures that are contained in the Supplemental Agreement.
It is not compulsory and it can be changed. The National Society advises that nothing should be deleted from the Agreement as drafted. It should be informed of any proposals for deletions.
The proposed members of the academy company decide.