Governance determines who has the power,
who makes the decisions,
how other players make their voices heard and
how account is rendered
Last week I sent a message to NGA’s members, outlining the role of the governing board in making decisions about phased re-opening of schools to further pupils. Many members sent thanks for the clarity, but we also had some requests for more on the board’s responsibility. When you are volunteering for a governing board, the responsibility should be made clear even before you accept the role, but I know that doesn’t always happen. And no-one could have foreseen having responsibility in the times of COVID-19. This question of responsibility and decision making goes to the heart of governance. So here goes….
The ultimate legal responsibility for the conduct of school(s) rests clearly and unambiguously with the board of academy trusts and for maintained schools with the local authority. Academy trusts, voluntary aided schools and maintained foundation schools are also the direct employers of staff. However, all other maintained schools have delegated powers and will exercise employer duties on behalf of the local authority; so in practice there is very little difference in the staffing decisions the governing body has to make on a term by term basis, but there is a difference in the legally responsible entity. The legal responsibilities as employers are very significant, including those concerning health and safety. Although decision-making can be delegated, the legal responsibility cannot.
But no board can take all the organisation’s decisions itself and so instead the board decides where and to whom to delegate decisions. It may delegate operational decisions to executive leaders and governance functions to committees, including in multi academy trusts (MATs) to academy committees/local governing boards (LGBs), or in some limited cases to individuals. This should be laid out in a document, likely to be called a scheme of delegation (that vital SoD).
The process for the further opening of schools is primarily operational rather than strategic, so most decisions are the responsibility of the headteacher. They know the unique circumstances of their schools best e.g. its layout, staffing availability, class sizes, number of key workers in the community etc. and it is they who are best placed to make the detailed decisions required when it comes to safety, decisions which will need frequent review. The Department for Education’s guidance on governance has been further delayed, but I can point you to their published planning framework for schools: which says “Before coming to some decisions, school and trust leaders may also need to consult governing boards and local authorities for advice”
Snow closures are the obvious example, where it is tried and tested that this is a headteacher’s decision, but one they may want to consult the chair on if time allows. However COVID-19 is a much more significant threat than snow, so it’s a good challenge to check: really, does this still apply? We suggest that the decision-making process should be very much collaborative between senior leaders and governing boards. If your governing board thinks that, due to the unprecedented nature of the situation, it wants to make its own definitive decision, your board can of course decide to change the level of delegation at any point. That’s your prerogative. Legally you as a board could decide to take the decisions about re-opening schools yourselves.
Good governance isn’t just about the law: that sets out the framework within which judgement is exercised. The practice is largely down to people, their knowledge, their skills, their relationships, their behaviours, their wisdom. So, think about why exactly your board right now in the middle of pandemic would want to do that? What message does it send? The worries we have heard expressed are along the lines of “if we are the responsible body, we should take the decision as is it is so important.” Behind it perhaps is another worry that “we wouldn’t have delegated this decision knowingly”.
I would counsel against that change unless there was a very good reason to; otherwise it appears to prioritise power and control over the quality of judgements. The emphasis should be on working together to ensure the best possible decisions will be made in the interests of the pupils, their families, the staff and the community, in keeping with the agreed values and ethos. Last week I said: the headteacher (or possibly another executive within a multi academy trust) will need to undertake a full risk assessment before making a decision, and it would be wise for them to bring that assessment to their governing board. There should be time to plan ahead and call an extraordinary governing board meeting, held virtually of course, to examine the documented risk assessment. (Many have already been held.) Yesterday we provided an information sheet on judging risk assessments and there is a recorded webinar with Steve Edmonds, our Director of Advice and Guidance to watch. Our COVID resources for governing boards have been viewed over 107,000 times.
It is perfectly right that if the headteacher of a stand-alone school or the chief executive of a MAT has not raised the timing of a board meeting with the chair, the chair can make that expectation clear. The SoD also needs examining to determine whether this is a decision delegated from the trust executives to headteachers. In some cases it has been, and in those cases, even though the academy committee/LGB is not the employer (that is the trust itself), we would expect the headteacher to consult the academy committee on their risk assessment as well as working with trust executives. After all the academy committee will know the premises and community in a way that the trustees might not. In large MATs, it simply would not be practical for the trust board to scrutinise large numbers of risk assessments; but the arrangements for your MAT do need to be checked with your governance professional if the SoD is not clear. For all governing boards, the advisory role of clerks/governance professionals is as important as ever.
Competent senior leaders know full well when push comes to shove they are an employee with all that pertains, but irrespective of that legal contract should welcome the advice of their governing boards. Furthermore, respectful relationships built up over time make it much more likely that a senior leader will take the advice of their board. The added value of the board comes from its variety of backgrounds, skills, knowledge, experience and perspectives: this is particularly useful at a high-stakes time like this. No matter how dispassionate we rightly try to be, we all bring our personal baggage to the roles, both professional and voluntary, and our individual reaction to risk can be very different, quite hard-wired. Even when we all have the same hard facts and aim to follow the science, some people are willing to tolerate a higher level of risk than others and prioritise different risks. This crisis is illustrating that very clearly.
This is not meant to trivialise your concerns about legal repercussions. It is absolutely right and proper that those governing want to understand their personal liability, and we have covered that in one of our FAQs. You really are not going to find yourself in court simply because the governing board did not undertake the risk assessment itself or commission a risk assessment independent from your headteacher/chief executive. Educational professionals should be best able to apply or adapt the Government guidance to the school’s premises, knowing the school’s community. They are not expected to make scientific or medical judgements on the risk of transmission of COVID-19: those are being made at national level. Last Thursday the Government provided a summary of the scientific information behind their ambition for a phased further opening of schools, and as I have just been told the awaited SAGE children’s subgroup papers have been published this afternoon.
Many local authorities have begun to produce guidance, and it would be expected that senior leaders take notice of that too, and in the case of maintained schools, an explanation would be expected if that guidance was not followed, in the same way an explanation would be expected if the national government guidance was not applied by the headteacher/chief executive.
I have emphasised over the past fortnight, there is no need to rush into decisions. This may seem counter-intuitive when we are barely more than a week from 1 June, and next week is the half-term holiday. In fact, it is not currently truly possible to make a final decision on whether or not to open on 1 June: we are awaiting the outcome of the Government’s five tests to be announced on the next review of their COVID-19 recovery strategy. This will determine whether or not we are moving into step two which includes the further phased opening of schools. We originally expected that we would hear on Thursday 28 May, but it may be a few days sooner. Remember the Government’s ambition is to open further from the 1 June but conditional on their five tests being met.
Of course across England’s schools and academy trusts risk assessment and operational planning have begun, and many governing boards have already met to consider the assessment and the options to mitigate those risks. Some headteachers and chief executives may decide (or have decided) that they will not be ready to open that first week. So the conversation needs to move on to when it will be possible to open safely for some more pupils, how many and which ones; and what remote learning will be possible for others not invited into schools. Once again chairs and vice chairs could be used as sounding board while the risk assessments are being prepared, reviewed and amended.
I was privileged to be in the much advertised meeting between national stakeholders and the Government’s scientific and medical advisers last Friday. For me, one of the most striking points from their very helpful synopsis of the evidence and their thinking was that the risk from COVID-19 is not going to disappear for a long time. We can’t assume that it will have been eliminated by September. We need to learn to live with a certain amount of risk, while minimising it as much as we possibly can, and balancing it with other risks affecting pupils, families and staff. So this will not be a one-off exercise, but a continuing discussion between senior leaders and their board.