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Are Free Schools regulated sufficiently?

A recent development

The Information Tribunal has rejected an attempt by the Department for Education (DfE) to withhold information, concerning the identity of groups who have proposed to open so-called ‘free schools’ in England, as reported by BBC News.

The Information, including the names, location and religious affiliation of such groups, was requested in an attempt to highlight an alleged lack of transparency inherent in the system of proposing and setting up a free school.

The BBC reports that the requests for information, regarding groups that failed to progress beyond the initial application stage for free schools, came from the Guardian newspaper, the Association of Colleges and the British Humanist Association (BHA).

Although the DfE had argued the information required was exempted under the Freedom of Information Act 2000, the Information Commissioner backed the requests; however, the DfE decided to appeal the case at the first-tier Tribunal (Information Rights).

The Tribunal dismissed the appeals on Tuesday, and Judge Hughes stated: “The Free School programme involves substantial public funds and significant changes to the way the education service is controlled, managed and delivered. It is a matter of considerable public importance and the transparency of the process and its openness to public debate and consideration are of concern to communities across England.”

The Department for Education is considering the decision, but may submit a further appeal to the Upper Tribunal.

What are ‘Free Schools’?

‘Free school’ is the common term for new state schools that are independent of Local Authorities and funded directly by central Government. These schools can be set up by parents, teachers, charitable organisations, faith groups or businesses.

In addition, free schools can be run by an ‘education provider’, or company brought in by the group setting up the school, but at present they are not allowed to make a profit. Each Free School enters into a contract, or funding agreement, with the Secretary of State for Education.

The legal basis for this change to the state education system was provided for in the Academies Act 2010, which was the first piece of legislation passed by the Coalition Government. Academies are former local authority schools that have applied for and won independent status, and they also receive funds directly by the Government.

By September 2012, there were approximately 79 free schools and 2,300 academies operating in England, which represents around 12 per cent of all state schools. 113 further free schools are due to open in 2013.

Have any problems with free schools been identified?

The Freedom of Information case is evidence of the fact that there has been considerable anxiety about the new free schools system in some quarters, for example:

  • teaching unions are concerned that these institutions can set their own rates on pay outside union agreements; neither do they have to adhere strictly to the National Curriculum
  • newspapers have expressed concerns about the transparency of business interests in this sector that may be pushing for future profit-making

For example, some companies, such as the education charity Ark Schools, have acquired several academies to manage, and they retain around 5 per cent of the funds received from the DfE to provide central services for all its schools, such as Human resources and procurement. This funding is equivalent to that proportion of Government funds kept back by local authorities to make provision for special needs education in its area.

  • Sections 9 and 10 of the Academies Act state that the Secretary of State must consult, regarding the proposed creation of an additional school, on other schools within the area in which the academy or free school is to be situated. However, this consultation is to be carried out only with ‘such persons as they may think appropriate’. In other words, public consultation is not enforced by legislation
  • Organisations that champion a secular view are concerned that faith-group free schools may not be teaching some subjects in a broad-enough manner, as free schools do not have to conform exactly to the National Curriculum

Indeed, in November last year, the Government introduced new rules which state that evolution must be taught in free schools as a ‘comprehensive and coherent scientific theory’, after the Royal Society identified that some schools might be introducing the theory of creationism as scientific fact. If the free schools do not comply, their funding could be withdrawn.

  • The Academies Commission, set up by the Pearson Think Tank and the Royal Society for the encouragement of the Arts, recently published its findings on the rapid ‘academisation’ of schools in England. The Commission, chaired by former Ofsted chief inspector, Christine Gilbert, reported that there is evidence some of the new schools attempt to select and exclude pupils on the basis of their behaviour and socio-economic background

The Commission recommended that Education Secretary, Michael Gove, should develop a system for admissions that allows parents “some independent recourse in terms of their relationship with an individual school, or each academy trust, acting as its own admissions authority”.

That is, an independent admission appeals system might allow for greater transparency with regard to the mix of pupils being admitted to free schools and academies, especially as results in exams are still taken as the gold standard by local parents looking for a school for their child.

However, a spokesman for the Department for Education said: “All admissions authorities, be they local councils or self-governing schools, including academies, must comply with our new fair admissions code.

“We specifically changed the law so that anyone who has concerns about how any state-funded school is admitting pupils can formally object to the Office of the Schools Adjudicator.”

The Schools Admissions Code came into force in February 2012. The Schools Adjudicator is appointed by the Secretary of State for Education, and has the legal responsibility to take into account supporting evidence presented by each party regarding admissions; they must also take account of any general guidance issued by the Secretary of State.


While the aim of improving our state schools for the benefit of all pupils is a laudable idea, it seems there is still much debate as to whether the academies system, including free schools, is actually achieving this goal, or if the education changes are creating a new two-tier system ‘by stealth’.

That is, many local schools that are not academies, typically less ‘successful’ schools, may be disadvantaged as money earmarked for education is taken out of local authority control.

Currently, the sector might appear somewhat unregulated, as it may be argued that being free from local authority control also means free schools are less accountable to the public they are meant to serve.

There may be interesting legal developments in future, if further glitches in the running of free schools occur and the Government have to respond by tweaking the legislation; legislation that was rushed through Parliament in record time as a flagship development for the new Coalition Government.

Original story:

BBC | 2 | 3

One comment on “Are Free Schools regulated sufficiently?

  1. In answer to your question, NO, they are not! If anyone is interested further I am currently involved with an interesting case regarding my son in a “free” school where the school are blatently ignoring their own complaints procedure and allowing the head to behave outrageously including shouting and insulting parents, children and more recently an Ofsted inspector. Please email

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