On NGA’s GOLDline advice service, we often receive queries regarding governing board panels. Whether as part of a complaint, exclusion review or HR procedures, panels are often necessary as part of sensitive processes, which means it is essential that the appropriate procedure is carefully applied. For clerks, who often take a key role in organising the formation of panels, one of the most commonly encountered issues is considering whether using individuals from outside the governing board is advisable, and the practicalities of doing so.
Unfortunately, there is no blanket answer to the question of using outside individuals on panels. Different types of panels have contrasting legal frameworks underlying them, while even the same type of panel is governed by differing policies at school or trust level. The context will also be highly relevant in determining whether outside individuals are preferable to board members.
Avoiding using outside individuals
As a starting principle, our advice is that boards should begin with the assumption that it is preferable to use their own members where allowed by the relevant policy and legal framework. Solving issues internally has a number of benefits, it is easier to organise logistically; it ensures that the board has full control and oversight over processes for which they are ultimately accountable; and it allows the board to learn from the issues raised during the process.
Boards can take steps to ensure they can resolve most issues internally. Firstly, boards should consider their internal expertise, and take steps to strengthen the board where appropriate. This could mean finding new board members with particular knowledge, or training existing board members, for example in exclusions or chairing panels. Secondly, boards should also be careful to avoid tainting their members when a situation develops which could ultimately lead to a panel. This means only giving board members the most basic information, so they do not hold any existing opinions which could compromise their ability to tackle an issue with an open mind.
However, there will be cases where outside individuals are needed to ensure a fair and effective process. For example, there could be cases where a significant proportion of the board are conflicted, or lack appropriate knowledge or training. We therefore advise boards to agree policies which facilitate the use of outside members where necessary.
When is using outside individuals permissible?
The one form of governing board panel where an outside member is required by law is complaints panels in academy trusts. The Education (Independent School Standards) Regulations 2014 require one panel member to be “independent of the management and running of the school.” Although the regulations are not explicit, we would advise that those governing in other schools within the same trust are not considered to be independent under this definition. The same provision does not apply to maintained schools, but the Department for Education’s best practice guidance and model procedure are clear that the use of outside individuals is permissible.
Other forms of governing board panels do not offer the same clarity on the involvement of outside individuals. In regards to HR panels, such as disciplinary hearings or pay appeals, there is no statutory guidance for schools on panel composition, so schools and trusts will need to rely on their relevant policy for direction.
Exclusion panels are addressed in statutory guidance, with a requirement for maintained school panels to include “at least three governors”. This could, in theory, also include outside individuals if the minimum governor composition is met, but it is unclear why this would be necessary. In academies, the guidance allows delegation “to a smaller sub-committee if the trust’s articles of association allow them to do so”. Under the model articles, a majority of a committee's members must be trustees, unless it is a local governing body.
Arranging and approving the use of outside individuals
From a procedural perspective, governing board functions need to be actively delegated to panels. Ideally, the relevant policies will provide explicit guidance on panel formation, allowing some flexibility in terms of membership while avoiding the need for governing board approval of every individual panel. If the circumstances of a case are not covered by the policy, for example where a policy assumes governors or trustees will form the panel but outside individuals are required due to an insufficient number of unconflicted board members, the board should endeavor to agree any variations from the policy at a full meeting. In these cases, it is also best to inform the other parties involved and seek their consent for a departure from the relevant policy, emphasising that you are proposing to increase the independence of those considering the case.
Maintained schools have the further option of using the School Governance (Collaboration) (England) Regulations 2003 to agree formal co-operation with another maintained school. This is not necessary for using governors from other schools, but is required if the school wishes to appoint a standing committee for hearing all cases which includes governors from another maintained school.
If the governing board have decided to use outside individuals, the next question is sourcing the particular panel members. Boards may have their own contacts who have the appropriate skillset and independence to carry out the role effectively. In the absence of this, the local authority and neighbouring schools and trusts can all be used to find individuals with the relevant expertise.
We understand that the issue of panel composition can be harder in practice where policies may be ambiguous, and the existence of conflicts could be a point of contestation. In these cases, NGA GOLD members can access our GOLDline advice service via phone or online request and receive bespoke advice.