NGA GOLDline case studies

Q: I am clerk to a trust board of a single academy trust and need to form a panel to review a parental complaint, what factors do I need to consider when seeking panel members?

A: In terms of panel composition, as an academy trust, the panel will require one member who is independent of the management and running of the school. Possible options would be a governor or trustee from another local school or a member of the local community. The trust’s complaints policy may contain other stipulations on the panel composition.

In terms of the number of individuals on the panel, we would advise that unless the policy states otherwise, the panel consists of three. This will help ensure that a decision can be reached even if it is on a majority basis.

When agreeing the panel members, it is important that steps are taken to ensure that the review is fair. Therefore, the panel members should have appropriate knowledge of the necessary process and be impartial. It is important to note that the impartiality relates to the individual and not the category of trustee. For example, a parent trustee would not automatically be precluded from sitting on the panel by virtue of them being a parent trustee. They should however not take part if they know the parent involved.

However, we would advise against staff trustees being on the panel as they will have an inherent conflict of interest. Our view is that school employees should not sit on a complaint panel, as the panel will ultimately be reviewing the actions of the school and so, directly or indirectly, those of the senior executive leader, given their responsibility for the school’s day-to-day running. As such, any staff trustee would be conflicted because they would be asked to review the actions of their colleagues, and potentially their manager.

It is also imperative that the panel members have not previously been privy to the details of the complaint, so that they are ‘untainted’ and undertake this review with no previous knowledge or preconceived views. It is important that any decision reached is based purely on the information presented to the panel.

The board should also check whether any other prospective panel members are conflicted. In particular, it is worth considering whether any trustees have a close relationship with the complainant, or a party named in the complaint. Any conflicted trustee should not be a panel member.

As such, there are a number of factors to consider when forming a panel. Your key priorities should be meeting your legal obligations, abiding by your policy, and taking whatever steps are reasonable to ensure a fair and transparent process.

NGA has detailed guidance on handling school complaints, while the Department for Education has also published guidance, and a model policy.

Q: Please can you clarify which link governors/trustees boards should have as a minimum?

A: There are specific requirements when it comes to the areas of SEND, safeguarding and careers. Further details are provided below, including how these requirements apply to multi academy trusts (MATs).

Safeguarding Governor

The statutory guidance, Keeping Children Safe in Education, sets out the expectation on boards in relation to the monitoring of safeguarding arrangements:

61. Governing bodies and proprietors should have a senior board level (or equivalent) lead to take leadership responsibility for their school’s or college’s safeguarding arrangements.

In the case of a MAT, this would mean an individual on the board of trustees. However, it is also important that academy committees (also referred to as local governing bodies) maintain oversight of safeguarding at a local level, and that this is regularly fed back to the trust board as part of its trust-wide oversight. Although not a statutory requirement, this process could include local safeguarding governors in addition to the senior board level lead, though it would be at the trust board’s discretion and would need to be recorded in the relevant scheme of delegation and terms of reference.

SEND Governor

In relation to SEND, the expectation is outlined in paragraph 6.3 of the SEND Code of Practice:

6.3 There should be a member of the governing body or a sub-committee with specific oversight of the school’s arrangements for SEN and disability.

Although the guidance is not explicit on whether, in the context of a MAT, the SEND governor should be a MAT trustee or local governor, it is sensible for the named board member with specific oversight of the school’s arrangements for SEND to be a trustee, with the option for further SEND governors at local level. Again, this would be at the discretion of the trust board.

Careers Governor

Following the introduction of statutory guidance for careers in 2018, the recommendation that governing boards of secondary schools should have a careers governor is outlined on page 68 of the Governance Handbook:

50. All boards have a crucial role to play in connecting their school with the wider community of business and other professional people in order to enhance the education and career aspirations of pupils. Boards are encouraged to have a nominated individual who takes a strategic interest in careers education and guidance and encourages employer engagement, which may in turn potentially lead to employers providing new, skilled individuals to serve on the board. Boards should engage with their Careers & Enterprise Company Enterprise Adviser (where appointed), who can help the school to develop its careers programme and to broker relationships between employers and the school.

Therefore, while not a legal requirement, secondary schools should endeavour to have a board-level lead on careers. Furthermore, as the guidance refers to ‘every school’, academy committees may wish to consider having their own careers lead, depending on what is delegated to local level.

Other link governors

Beyond the above roles, boards may want to consider assigning governors/trustees to improvement areas. This is an effective way of holding school leaders to account when it comes to delivering on various aspects of your school development plan. Alternatively, some boards prefer an approach of having subject or year link roles to help enable boards to understand in greater depth how the school operates in specific areas.

It is important to note, however, that appointing a ‘named’ or ‘link’ governor does not absolve the governing board of its responsibilities for any of the above areas. The governing board should therefore ensure that these areas are covered at full governing board meetings, and that all members of the board have a good understanding of the strengths and weaknesses of the school in relation to these matters.

Q: I am a clerk to a maintained school governing board and they are due to agree on next year’s prices for the school’s wraparound provision, can the governors that are also parents take part in this discussion and vote on this?

A: Whether a governor can vote on a particular matter will depend on whether they have a conflict of interest. When referring to conflicts of interest, this would relate to both pecuniary and non-pecuniary (conflicts of loyalty).

In this case, governors that are also parents would not automatically be precluded from taking part solely because the wraparound provision is used by parents.

However, if those parents also used the wraparound service, then there is a clear pecuniary interest as they will effectively be voting on how much they themselves will be paying next year.

Even for governors that do not use the service themselves (and so would not benefit directly), if they have close friends or family members that do, then there could still exist a conflict of loyalty.   

We would therefore advise that more details are obtained as to whether any individuals on the board have a pecuniary or non-pecuniary interest. If any governors do, then this should be declared at the beginning of the meeting and they should not take part in any discussions relating to this matter or vote.

If there is any dispute as to whether a conflict exists, then this must be determined by the other governors on the board.  

Q: I am chair of a governing board in a maintained school. Our headteacher wishes to retire at the end of the academic year and our current Deputy has expressed an interest in applying for the role.

Do we still need to advertise?

A: It is permissible for a school to appoint a headteacher without advertising externally in specific circumstances.

Paragraph 6.4 of the Department for Education guidance on recruiting a headteacher states:

6.4 Exceptions to advertising

In some limited cases, it is possible for schools to appoint a headteacher without advertising the vacant post but only if the board can demonstrate there is a good reason not to do so. Such exceptions may arise where there is a pressing need to appoint a headteacher quickly on occasions when the appropriate notice period is not, or cannot be, observed (for example, following ill health or if there is a long standing vacancy which has not been filled via the usual recruitment method).

In addition, part 2, regulation 15 of the School Staffing Regulations 2009 states:

15  Appointment of head teacher and deputy head teacher

(1)     The governing body must notify the authority in writing of—

(a)     any vacancy for the head teacher; and

(b)     any post for a deputy head teacher which it has identified as one to be filled.

(2)     The governing body must advertise any such vacancy or post in such manner as it considers appropriate unless it has good reason not to.

The key point is that advertising externally is a requirement in most scenarios. Ultimately, you can never be certain that you have the best candidate internally unless you open out the process externally.

As such, any decision not to advertise should only be taken with good reason. The governing board should clearly document their decision not to advertise through board minutes so they can demonstrate that they have acted reasonably. The departmental guidance provides some examples of situations where exceptions to the assumption that the post will be advertised externally could be made. The benefits of not advertising would need to clearly outweigh the benefits of opening the process to a wider pool of applicants.

Q: We are in the process of adopting our governing board’s Code of conduct. However, one governor has refused to agree it.

Would it still apply to them?

A: The Code of conduct like any other policy, only needs to be agreed by the majority of the board in order for it to be deemed as ‘approved’. Therefore, the Code will apply to all members of the board irrespective of whether they have individually agreed it.

However, it is preferable that all members of the board are aware of the expected standards of behaviour and agree to comply with the Code. Many boards will choose to document this agreement by all governors/trustees signing the Code as well as documenting this in the minutes. Therefore, I would advise that the Chair speak to this individual and try to ascertain why they do not agree with the Code and whether there were any amendments they wished to suggest.

However ultimately, if this individual continues to refuse to approve the Code, so long as the majority of the board have approved it, it will apply equally to them.