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Under section 4 of the Academies Act 2010, the Secretary of State for Education must make an academy order in respect of a maintained school if it has been judged to be ‘Inadequate’ by Ofsted i.e. it is a school requiring significant improvement or special measures.

The Regional Schools Commissioner (Regional Director) will take the lead in identifying the most suitable sponsor and brokering the new relationship between that sponsor and the school.

The Secretary of State may make an academy order in respect of a maintained school if either:

• the governing body applies to become an academy
• the school is ‘eligible for intervention’ within the meaning of Part 4 of the Education and Inspections Act 2006 (other than being an ‘Inadequate’ school)*.
• the school is considered to be ‘coasting’ under the Coasting School (England) Regulations 2022 which in the vast majority of circumstances will mean that the school has been judged below ‘Good’ in more than one consecutive inspection.

*A school is ‘eligible for intervention’ (other than being an ‘Inadequate’ school) if it has not complied with a warning notice and the local authority (LA) or the regional director, on behalf of the Secretary of State, has given the school written notice of their intention to exercise their intervention powers.

Sponsored academy status is designed for ‘underperforming’ schools where action is needed to raise standards. If your school is considered to be ‘underperforming’ then you may have already been approached by your LA, the regional director or the DfE about sponsored academy status. The vast majority of schools who become sponsored academies do so voluntarily.

If you are not considered to be ‘underperforming’ then it is unlikely that you will be permitted to become a sponsored academy. However, you may want to consider joining together with other schools to set up or join an existing multi academy trust.

Sponsored academies are supported by an academy sponsor (see below). The academy sponsor will usually appoint all or a majority of the members and trustees of the academy trust which will run the school. It is usual for this academy trust to run a number of academies.

Converter academies receive a grant of £25,000 (plus any other grants, if available) towards the cost of the academy conversion. By contrast, the academy trust of a sponsored school will receive a ‘pre-opening grant’ of between £70,000 and £150,000 for pre-opening costs, including legal advice, project management, curriculum development, school improvement services and the early appointment of key staff.

A variety of organisations have applied to become academy sponsors, including existing academy trusts, universities, businesses, independent schools, diocesan bodies or charities. To become a sponsor, the organisation has to apply to the DfE/Regional Director and demonstrate that they have the ability and capacity to transform schools into successful academies.

The governing body of the school (or governing board, for existing academies) or the LA may express a preference for a particular sponsor. In the case of a foundation (including cooperative trust) or church school, the Regional Director is required to consult with the trust or diocese about the identity of the sponsor. However, the final decision on the identity of the sponsor will be made by the Regional Director.

The legal process to convert a maintained school to an academy is the same whether the school will be a converter academy or a sponsored academy. Similarly, the legal process to transfer an existing academy school to another multi academy trust is the same whether or not the school will be sponsored.

The sponsor is likely to take the primary lead in agreeing the draft documentation for the setting up or transfer of the academy school.

Where the school’s governing body has made an application for an academy order, the Academies Act 2010 requires the school to consult 'such persons as they think appropriate' on whether the school should be converted into an academy. The statutory requirement does not prescribe who should be consulted or the length of the consultation required, so the general law on consultation applies. Generally, we would recommend consulting with all key stakeholders, including parents, staff, pupils, other schools, the LA and the wider community, over a consultation period of about six weeks.

Where an academy order has been made by the Secretary of State without the governing body having made an application (i.e. where the school has been judged to be ‘Inadequate’ or otherwise eligible for intervention), then there is no longer any legal requirement to undertake a consultation. Similarly, where the sponsored school is already an academy, there is no requirement to consult generally with stakeholders. However, in both cases, it is considered good practice for academy trusts to inform parents, staff and other key stakeholders about the proposals and give them the opportunity to respond.

Staff will also need to be formally informed/consulted about the transfer of their employment under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’).

Members of a company limited by guarantee (like the academy trust) are similar to the shareholders in a company limited by shares. They are the ‘guarantors’ of the academy trust and promise to pay £10 towards its debts should the academy trust be wound up without enough assets to satisfy its creditors.

The role of a member is a ‘hands-off, eyes on’ role, similar to the governance role of the LA in a maintained school. Members will have limited powers which will include the right to wind up the academy trust, amend the articles of association, appoint other members and appoint and remove one or more trustees.

The trustees are individuals appointed to make strategic decisions about the day to day running of the academy trust and are legally accountable for the trust’s actions. and have three roles:

• they are directors because the academy trust is a company
• they are trustees because the academy trust is a charity (albeit one that is exempt from registering with the Charity Commission)
• they are governors because the academy trust is responsible for running the school(s).

For the purposes of this document, we refer to them as ‘trustees’.

In multi academy trusts, each academy school will usually have its own local governing body (LGB). These have a similar status to committees of a maintained governing body and the only powers they have are those that are delegated to them by the board of trustees. This is normally formalised into a scheme of delegation. Whilst on occasion individuals serving on an LGB may also be trustees of the academy trust, retaining some distinction between the layers is important to ensure effective oversight and challenge. It is common for individuals serving on an LGB to be referred to a ‘governors’, although technically the governors of an academy trust are the trustees.

In a sponsored trust the sponsor will appoint all or the majority of the members and trustees of the academy trust. This gives the sponsor a large degree of control in setting and implementing the strategic vision and school improvement plan for the school.