Guidance

Free schools: pre-opening guide

Updated 31 October 2023

Applies to England

Opening a free school is challenging, but also really rewarding. This guidance will support you to turn your plans for a school into reality. It sets out the legal requirements and tasks you’ll need to undertake to make sure your school opens successfully.

This guidance applies to the following types of free school project in the pre-opening phase:

• mainstream (including primary, secondary, all-through and 16 to 19)
• special
• alternative provision
• presumption free school projects

Depending on what type of school you are opening, there may be differences in the specific tasks for certain pre-opening processes. For example, developing admission arrangements. Where this applies it will be clearly indicated in this guidance.

If you are applying to open a primary or all-through free school, there is an assumption that the proposed school will include a nursery. This guidance explains the specific processes you must follow to successfully open your nursery.

If you are opening a presumption free school, you should also refer to the pre-opening section of the free school presumption guidance. This provides details of the differences in the pre-opening process.

For maths schools, much of the general pre-opening guidance for free schools is relevant. But there are some matters specific to maths schools, such as outreach, when you should contact the maths schools policy team via your usual contact or email Maths.SCHOOLS@education.gov.uk for more information.

Stages of opening a free school

Before signing a funding agreement with the academy trust to open your free school, the Secretary of State needs to be satisfied that:

• there is a suitable site for the school that provides good value for money

• the school will provide a good standard of education, with a viable and sustainable number of pupils from its first day of operation

We’ll advise, challenge and support you throughout the pre-opening phase. This is to make sure your school meets these requirements.

Some projects progressing to the pre-opening phase may be subject to precise and strict conditions. These are set out in the pre-opening approval letter. Further conditions may also be set during the pre-opening phase. These conditions may specify the need to address a specific risk if the project is to proceed successfully. If you do not meet any of these conditions, it is unlikely the Secretary of State will enter into a funding agreement with your academy trust.

We may reconsider our approval of your project if you run an existing school, or have another application in pre-opening and:

• we have a concern about it
• it is subject to a notice to improve from the Education and Skills Funding Agency (ESFA) or a regional director
• Ofsted judges your existing school as either requiring improvement or inadequate
• there is a significant decline in the performance of one or more of your existing schools

How we work with you

We allocate a DfE regions group (RG) delivery officer to work with you as you move towards opening the school. Our capital team will also find and develop a site for the school.

Your academy trust develops plans and meets legal requirements. We’ll procure an external professional contractor (external expert) to review your progress on education and staffing plans. They will provide your RG delivery officer with confidential advice as you develop your education and staffing plans.

The Secretary of State signs the funding agreement.

Once you’re open, the RG delivery officer is your main contact. You’ll also work with ESFA on financial matters, and may need to work our capital team, if required.

Roles and responsibilities

We assign all academy trusts an RG delivery officer. Your RG delivery officer will help to make sure your school will operate successfully once it is open. This means providing places in good new schools with strong leadership where these are most needed from the start.

You’ll have regular interactions with your RG delivery officer. This includes formal meetings at specified milestones. These formal meetings between academy trusts and DfE will usually include:

• a kick-off meeting

• a checkpoint meeting to determine the provisional opening date once we have confirmed the site

• a checkpoint meeting, normally in the December or January before the provisional opening date - where we’ll discuss pupil recruitment and other issues you need to resolve in the run up to the signing of your funding agreement

• a readiness-to-open meeting, about 3 months before opening, to confirm that the school will open successfully

At all these meetings, we’ll:

• assess your project’s overall progress
• identify any important risks that might prevent the school from opening on time and operating successfully once open
• assess the costs incurred to date and expected future spend

We may set up additional meetings, depending on progress. We expect there to be senior representation from the academy trust at each one.

We’ll work closely with local authorities for special free school projects.

We’ll also assign you a contact from our capital team to secure your site and the buildings for your school. See the site and buildings section for more information.

Project management

Annex A includes a project task checklist that outlines the core tasks that need to be undertaken during pre-opening. Completing these tasks at the right time is essential to make sure that your school can open successfully.

It is critical that you put in place robust planning and project management arrangements. The timetable for opening a free school is very demanding. Your RG delivery officer will request a copy of your project plan, ahead of the kick-off meeting.

We recommend you designate a specific person to be responsible for:

• managing your project
• tracking progress
• managing risks

You can use the project development grant (PDG) to buy in project management support. See the procurement and additional support section for more information.

Determining the opening date

One of the important milestones in the pre-opening phase is agreeing your provisional opening date. You’ll have your own preferred opening date for your project, but we must agree the opening date you use to market your school to parents. In most cases, we’ll only agree your provisional opening date once we have:

• confirmed a site

• assessed the time needed to get planning permission

• assessed the time needed to complete necessary building works or refurbishment

• considered whether the need for the school identified at assessment stage remains
• considered when the new places your project will provide will be needed

We’ll normally arrange a meeting to discuss the provisional opening date before issuing the formal letter.

You may need to be flexible about:

• your school’s location

• the year of opening

We’ll only open a school in temporary accommodation in a limited number of specific circumstances. See the site and buildings section for more information.

While we’re securing a suitable site, we expect you to continue to develop plans for:

• admission arrangements
• curriculum
• governance, including reviewing memoranda and articles of association

You’ll usually need to wait for confirmation of a site and provisional opening date to:

• recruit the principal designate and other staff
• carry out the statutory duty under Section 10 of the Academies Act 2010 to consult on the proposal for your school
• agree the terms set out in the funding agreement and understand the associated legal responsibilities and implications
• invite applications to your school

Main risks during pre-opening

Our experience from opening more than 600 free schools suggests that most projects share a set of risks that you’ll need to monitor and manage during pre-opening. Your RG delivery officer will want to understand how you plan to manage each of these risks.

Each project will have its own risks, discuss any concerns with your RG delivery officer.

If any risks materialise during pre-opening, inform your RG delivery officer immediately. They can help resolve them and enable you to open a good, viable school on time.

Leadership

Significant risks could include:

• not recruiting a high-quality principal designate early enough to support and influence the development of the school’s policies and education brief

• recruiting a principal designate earlier than expected, for example, 3 terms before the school opens

Staffing

Significant risks could include:

• not recruiting sufficient suitable staff 6 months before opening so they can start when the school opens
• wanting to recruit staff before we have agreed to enter into a funding agreement

Governance

Significant risks could include:

• not appointing a suitably skilled chair of academy trustees 10 months before opening
• you have an existing school which:
  • is issued with a notice to improve
  • is judged by Ofsted as either requiring improvement or inadequate
  • has a significant decline in performance
• DfE has a concern about another of your projects in pre-opening
• not submitting a complete governance plan 10 months before opening

Pupil recruitment

Significant risks could include indications your school may not be viable such as:

• not meeting your marketing and recruitment plan targets
• application numbers on the application deadline date being below:
  • DfE’s minimum viable numbers
  • the viable number to deliver your curriculum
• low numbers of accepted offers by national offer day
• in the case of an AP or special school, the number of referrals received from commissioners is low

Local factors

Significant risks could include:

• the local authority being unsupportive of the project
• the local community or schools raising significant opposition to your project during or following consultation
• opposition to the project attracts media attention
• issues with the new housing development your project is linked to that may result in delays

Finance

Significant risks could include:

• running out of PDG
• identifying a potential conflict of interest with regard to spending the PDG
• being unable to submit a viable financial plan ahead of the readiness-to-open meeting or at other important points as requested

Education

Significant risks could include failing to:

• agree an education plan that DfE considers appropriate
• develop the policies DfE requires for consideration by the external expert

Admissions

Significant risks could include wanting to:

• adopt unconventional admission arrangements
• be part of your local authority’s co-ordinated admissions

Governance

When formulating your governance arrangements, you should consider:

• strategic leadership that sets vision, ethos and strategy
• accountability that increases educational standards and financial performance
• people with the right skills, experience, qualities and capacity
• structures that reinforce clearly defined roles and responsibilities
• compliance with statutory and contractual requirements
• evaluation to monitor and improve the quality and impact of governance

The competency framework for governance provides more information.

The governance handbook sets out expectations for governance in academy trusts.

All academy trusts, as charitable companies, have both academy trustees and members. An explanation of governance structures and roles and their responsibilities is available.

Setting out your governance arrangements

You must set out your governance arrangements in your articles of association.

We provide model articles of association for academy trusts to use. Church trusts should use the church academies model documents.

The model articles set out the charitable purpose of the academy trust and its governance structure. This includes information about:

• what the academy trust exists to do
• appointing and removing academy trust members and academy trustees
• establishing committees and local governing bodies

The articles also provide a framework for academy trusts to act within company and charity law.

You’ll need to submit to your RG delivery officer your academy trust’s:

• articles of association
• completed confirmation of model articles checklist (see annex B)

We expect you to adopt the latest model articles of association before signing a funding agreement. This includes existing academy trusts who already have an article of association.

Members

Academy trusts are founded by members who have a general duty to exercise their powers to further the academy trust’s charitable purpose. The first members are the signatories to the memorandum of association drawn up when the academy trust is first established. These first members agree the academy trust’s first articles of association, which set out the academy trust’s charitable purpose.

Members should make sure that they’re sufficiently informed about the trust to be able to exercise their powers effectively. They should not get involved in the day-to-day management of the trust.

Members have an important role in academy trust governance. These include the power to:

• appoint and remove academy trustees

• direct academy trustees to act, in certain circumstances

• make changes to the articles of association (although this may need additional permissions)

Your academy trust must have at least 3 members. Our preference is for academy trusts to have at least 5 members.

Employees of the academy trust must not be members. No more than 19.9% of members can be local authority associated persons. See the governance handbook for more information.

We expect the majority of, if not all, members to be independent of the board of academy trustees.

Check:

• you have at least 3 members (we strongly recommend at least 5)
• your members meet the guidelines about employees and local authority associated persons (LAAPs)
• there is sufficient separation between members and academy trustees to enable members to exercise their powers objectively
• your governance plan demonstrates a clear understanding of the role of the member (and what lies outside their role)

Trustees

The academy trust board is the decision-making body. It is accountable and responsible for all the academies in the trust. The board should focus on the 3 core functions of governance:

• setting the strategic priorities for the academy trust

• holding the senior leader to account

• making sure that you spend money properly and effectively

The academy trustees must comply with the academy trust’s charitable objects and with company and charity law. It should provide members with sufficient information to assure them that the board is exercising effective governance.

The board of academy trustees signs off the annual accounts. They’re responsible for:

• adherence to the academy trust’s funding agreement with the Secretary of State

• the academy trust’s accountability to Parliament and the Secretary of State

The role of trustee requires commitment as well as the right experience and skills. The competency framework for governance sets out the skills needed for effective governance.

Academy trusts need to put in place arrangements to make sure that members and academy trustees avoid conflicts of interest. This includes:

• publishing a register of interests, containing all potential conflicts of interest

• managing potential conflicts in line with the academy trust handbook and Charity Commission guidance

Parent trustees and governors

The academy trust board must include at least 2 elected parent trustees. If you decide the parental perspective should be at local level, there must be 2 elected parents on each local governing body within the academy trust.

The process for electing and appointing parent trustees and parent local governors will be set out in the academy trust’s articles of association.

Recruiting the right people as trustees

You need to make sure that the people you recruit as academy trustees understand the requirements of the role and have the commitment, experience and skills to be effective. Your RG delivery officer will want to be clear about the skills and experience each trustee brings and what role they will fulfil.

Guidance on the role of the chair of governors in schools and academies will help you find the skills you need when appointing a chair.

The academy trustees of a free school need to be assured that its financial systems, transactions and risks are being adequately assessed and addressed. Academy trustees are also responsible for establishing internal controls for governance and financial management. More information on how a free school can check that their financial and other controls are operating effectively are in the academy trust handbook.

Your RG delivery officer will want to see evidence of the steps you have taken to make sure that the trust board includes individuals from a range of different backgrounds. Having some people on the board who come from outside the faith or ethnic group of the majority of pupils can help make sure that the board has sufficient internal challenge to the decisions it makes and how it carries out its strategic functions. A board must also make sure that its members understand the full diversity of the school’s cultural and religious context and that of the community it serves.

Parent trustees are elected by other parents or carers, not the trust, but they’re expected to act in the best interests of the trust in the same way as all other academy trustees. They take on the same responsibilities as every other trustee, so it is vital that you do what you can to ascertain that candidates understand the role and have the necessary skills and commitment. The term of office is 4 years.

Finding trustees

Inspiring Governance is a free, online self-matching service for individuals who are interested in volunteering as a governor on LGBs of academy trusts.

In recruiting your board of academy trustees, you should aim to have recruited a capable chair and identified the majority of your academy trustees at least 6 months before your school’s provisional opening date. This does not include parent trustees, whom you can appoint during the first term post-opening. Your RG delivery officer will challenge you throughout the pre-opening period on the progress you are making in appointing academy trustees. Governance will be an important focus at your readiness-to-open meeting, at which, alongside the principal designate, the chair will be expected to play a full part in the discussion.

You may be tempted to appoint as academy trustees individuals who make a strong contribution to the pre-opening project team. This can be appropriate, but only if you are confident that an individual will make a full contribution as a trustee in the longer term, based on their skills and experience.

Trustees’ commitments post-opening

You’ll need to make sure you have academy trustees with sufficient capacity to undertake their role. The required commitment can be significant, particularly in the pre-opening phase and early years of a trust.

You can reduce the burden on individual academy trustees through effective use of committees and working groups. They can work on behalf of the academy trustees to:

• explore specific areas of interest

• make recommendations to the board of academy trustees

• take decisions on the board of academy trustees’ behalf

Committees

An important consideration will be how to make the most effective use of committees, including, if you are a trust with more than one school, LGBs. Academy trusts must establish an audit and risk committee appointed by the trust board. The committee must include directing the academy trust’s programme of internal scrutiny.

Bigger academy trusts (with an annual income of over £50 million) must have a dedicated audit and risk committee. Other academy trusts must either have a dedicated audit and risk committee or can combine it with another committee. In addition, trust boards are expected to have a finance committee to which the trust board delegates financial scrutiny and oversight. Other areas of business covered by committees may include curriculum and attainment.

Academy trustees can formally delegate decision-making powers to a committee. This allows it to make decisions on behalf of the board of academy trustees. Other committees may focus on specific issues and make recommendations to the academy trustees. Non-academy trustees can be co-opted onto committees and can vote on that committee, although – except in the case of LGBs – the majority of committee members must be academy trustees.

Committees can be a helpful way of bringing additional expertise to support the academy trustees. Your decision about whether to establish a committee should be based solely on the needs of your trust and the skills of your academy trustees. It is important to remember that the board of academy trustees retains overall accountability, regardless of what powers it delegates to any committee.

As an alternative to a standing committee, you could consider setting up a working group to offer advice to the academy trustees on specific issues or to give a voice to a particular group, such as parents or the community. Because of its informal nature, it can be easier to stand down a working group once an issue has been resolved, which avoids unnecessary demands on people’s time. You cannot delegate decision-making powers to a working group.

Local governing bodies (LGBs)

Academy trusts with multiple academies may establish a type of committee known as an LGB. In some academy trusts, an LGB may be known locally as an ‘academy committee’ or ‘local advisory committee’. An academy trust may decide to set up one or more LGBs and, through a scheme of delegation, will decide the responsibilities delegated to them. This can vary from a high level of delegation to a wholly advisory LGB. However, regardless of the responsibilities delegated to an LGB, the academy trust board remains the accountable body. LGBs can be set up at academy level or across a group of academies. The governance structures and roles guidance sets out more information.

Governance structures that span more than one school can bring significant benefits and allow you to make the most of the skills and experience of your best people.

Governance professional (clerk) to the trustees

You are required to appoint a governance professional (clerk), who has the expertise to advise and provide governance support to the academy trust board. In an academy trust, the governance professional must not be an academy trustee, principal or CEO of the trust. They will receive direction from and are accountable to the board.

The governance professional will provide high-level administrative support and independent advice to assist the academy trust board and its committee’s in carrying out its business in an efficient and professional manner. This role will involve supporting academy trust board and committee meetings and providing advice and guidance on the board’s statutory and strategic functions to enable it to be compliant with the legal process.

The governance professional is also responsible for making sure that each meeting of the board of academy trustees is formally recorded and there are clear minutes on the matters discussed and the actions approved.

The governance professional will also help the board understand its role, functions and legal duties, and support the chair to enable and facilitate strategic debate and decision-making.

Consider:

• what type of governance support your academy trust board and committees need now and in the future
• what skills and experience you need
• how you’ll employ the governance professional
• how the governance professional will work with the chair and academy trust leaders
• how the chair will oversee the performance of the governance professional in their role
• how the board will support the professional development of their governance professional
• what professional development the governance professional will need to make sure that their knowledge and practice is kept up to date

The standards of behaviour expected of anyone who holds public office, including those who work in education, are set out in the 7 principles of public life.

Creating your governance plan

Your RG delivery officer will ask to see a governance plan to:

• examine your governance structures, roles and responsibilities
• examine details of internal controls
• look at pen portraits of academy trustees
• check for any skills gaps and vacancies

When developing your governance plan consider if:

• the board structure is clear
• those involved in governance understand their responsibilities within that structure
• academy trustees clearly understand their role in supporting the delivery of the governance plan
• the plan reflects that the board is:
  • making sure there is clarity of vision, ethos and strategic direction
  • making sure there is financial oversight
  • holding the leadership to account for the school’s educational performance
• if the levels of responsibilities of the board are clear
• if delegated responsibilities are clear, for example, including a delegated-decision planner
• your terms of reference for committees includes:
  • link academy trustees and if so, in which areas
  • an explanation of their role

You should submit your plan with a completed checklist (see annex C) signed by the lead proposer or chair of academy trustees. This offers assurance that your plan contains the level of detail we need.

Your RG delivery officer will ask you throughout the pre-opening phase how academy trustees are managing the transition from pre- to post-opening. You should talk to them if you are experiencing difficulties developing the governance plan or if you think you’ll fail to submit a final version 10 months before opening. It is possible that your RG delivery officer will ask you to submit your plan before this time.

The governance handbook describes the role and duties of governors and trustees in academies.

The National Governance Association (NGA) has produced governing board self-evaluation guidance. It includes a list of 21 questions for a trust board to ask itself about culture, practice, structure, function and impact. Some questions will be more appropriate once the school opens, but most will be useful in helping you plan during the pre-opening phase.

Ofsted’s education inspection framework offers a wider picture of what academy trustees are responsible for overseeing.

Board and committee structure

The number of academy trustees you need should be determined by the requirements of your academy trust. The board of academy trustees should only be as big as it needs to be to make sure that it has the full range of skills to be effective. Any specialist knowledge can be provided as and when it is required by committees or other experts, such as the governance professional to the academy trustees or the academy trust’s legal advisers.

We’ll want to be assured that any larger body is justified, according to the likely demands of running your free school. Your RG delivery officer may suggest you ask some individuals to stand down if it is not clear that they will bring essential skills to the board of academy trustees, or if they judge the size of the group to be unwieldy.

In establishing an LGB, you should ask yourself the same questions about size, skills and structures as you would when setting up a board of academy trustees for an academy trust with only one school. You should also consider what, if any, responsibilities should be delegated from the academy trust board to the LGB, avoiding duplication or overlap between the role of LGBs and the board in holding executive leaders to account. These should be set out in a clear scheme of delegation (the document that confirms any delegation of spending and other decision-making powers from the board to committees or employees) published on your website. While you may delegate responsibilities to an LGB, the academy trust board remains accountable for what is delegated. Individuals appointed to an LGB are not academy trustees unless they also sit on the academy trust board.

Transition from pre- to post-opening

During pre-opening, some academy trustees take on additional responsibilities as part of the project team. It is important to make sure that academy trustees understand the need to take up a more strategic role as the free school moves towards opening. To support this, having a transition plan in place can help academy trustees make the necessary adjustments.

Taking a strategic role is not just about handing over the governance plan to the principal designate and senior leaders to enact. An important task for academy trustees during pre-opening will be to think about how they will:

• monitor and assess the school’s strengths, weaknesses and progress

• support and challenge the principal designate and senior leadership team

Leadership

Senior executive leader

You’ll need to appoint a senior executive leader. This is also known as the principal, executive principal or CEO. The senior executive leader must be:

• the head of the line management executive chain

• held accountable by the board of academy trustees for the performance of the trust

They should also be the trust’s accounting officer. The senior executive leader role must not rotate between individuals, although you can fill it by a job share.

The appointment of a senior executive leader does not require an additional person to be employed. In academy trusts with only one school, the senior executive leader will be the principal. For academy trusts with more than one school, the senior executive leader could continue to be the principal of an individual academy within the trust while also acting as its CEO. It is important to remember that there is no ‘lead school’ in an academy trust. The board must not favour or show allegiance to one school but, instead, foster a common ethos and vision across the whole trust.

Appointing an accounting officer or senior executive leader does not remove the responsibility of the board of academy trustees for the proper conduct and financial operation of the trust.

Accounting officer

Each free school trust must designate a named individual as its accounting officer. In single free schools, this should be the principal. If a free school is joining an academy trust, it should be the senior executive leader. The trust is responsible for making sure the accounting officer engages in sufficient training to undertake the role.

The role of the accounting officer includes a personal responsibility to ESFA’s accounting officer and Parliament for the financial resources under the free school’s control. The free school’s accounting officer must be able to assure them that they have maintained high standards of probity in the management of public funds. This requires the free school’s accounting officer to:

• have appropriate oversight, alongside the board of academy trustees, of the establishment, maintenance and monitoring of the free school’s internal control arrangements

• make sure that the free school’s assets and property are under proper control

• reduce the risk of fraud or irregularity

• keep full and accurate accounting records to make sure that there is ongoing viability

Your accounting officer is also required to sign:

• an annual statement included in the free school’s audited accounts attesting to the maintenance of regularity, propriety and compliance

• an annual statement explaining and demonstrating with examples how the free school has secured value for money

It is very important that the academy trustees establish robust internal control arrangements to make sure that these documents are efficiently cleared.

You can find more details about the role of the accounting officer on the Institute of School Business Leadership’s website.

Chief finance officer

Free schools must demonstrate capacity in their governance and financial management structures to safeguard public funds. An integral element is that free schools must appoint a chief finance officer (CFO). They will act as the academy trust’s finance director, business manager or equivalent, to lead on financial matters.

In smaller free schools, it may not be possible to justify the salary of a CFO. The CFO should be employed by the trust (unless the trust can demonstrate an alternative approach better suits their circumstances). Trusts must get ESFA approval to appoint a CFO who will not be an employee. You can find more details about the role of the CFO on the Institute of School Business Leadership’s website.

Delivering assurance

Academy trusts must have in place a process for checking their financial systems, controls, transactions and risks. Consider:

• appointing an internal audit service (either in-house, bought in or provided by a sponsor)

• the performance of a supplementary programme of work by the academy trust’s external auditor

• appointing an unpaid non-employed trustee with an appropriate level of qualifications or experience to check the academy trust’s internal controls

• asking a CFO or an experienced member of the finance team from another academy trust, as an independent reviewer to complete a peer review

You can find further information on internal scrutiny in the academy trust handbook.

Conflicts of interest

We define a conflict of interest as any situation in which a trustee’s personal interests, or interests they owe to another body, may or may appear to influence or affect their decision-making.

It is inevitable that conflicts of interest will arise at some time. Even the perception of a conflict of interest can damage your academy trust’s reputation. Your priority should be to make sure that your academy trustees understand their responsibilities for managing public money. These are set out in detail in the academy trust handbook. This includes putting the right mechanisms in place to identify and manage conflicts of interest.

Conflicts are most likely to arise where:

• academy trustees or their relatives intend to provide goods or services to the trust

• a trustee’s personal, family or professional relationships will, could or might be seen to compromise their ability to act solely in the interests of the trust

Your RG delivery officer will challenge any appointment they feel creates an unacceptably high risk of a conflict for your trust, but the responsibility is yours.

We’ll expect you to make sure:

• any individual or organisation represented as a member or trustee of your academy trust understands they will be able to bid for contracts from the trust only on an ‘at cost’ basis

• academy trustees comply with the protocols set out in articles 6, 97 and 98 of the model articles

• trustees establish a register of interests to record potential areas of conflict – this should cover them and their family members

• trustees and members understand the need for all procurement to be an open and fair competition (see procurement and additional support and the Charity Commission’s guidance on identifying and avoiding conflicts of interest)

We’ll take very seriously any failure to manage conflicts of interest properly, whether these are real or perceived. Negligence in relation to this could ultimately lead to the cancellation of the project.

Related-party transactions

The academy trust handbook  sets out the reporting and approval requirements for academy trusts transacting with a related party.

Academy trusts must declare or seek approval from ESFA for related party transactions before entering into a new agreement with the supplier. You should submit your declaration or request for approval using the online form.

You need to register for an identity and access management system (IDAMS) account to use the form and approve other users.

Refer to the academy trust handbook for more information on reporting related party transactions.

How DfE will work with you

Your RG delivery officer will:

• need confirmation that you have established your trust and your articles are in line with the latest model
• check the proposed size of your board of trustees
• request to see your governance structure, challenging you on any amendments or if your proposed board looks unnecessarily large
• ask you to confirm the names of any members and trustees you have already appointed - you must advise:
  • Companies House within 14 days of appointing a director (that is, a trustee)
  • DfE within 14 days of the appointment or removal of any trustee or member
• challenge you if any concerns arise about an individual’s appointment, including if we have a concern about a potential conflict of interest
• expect you to have plans for how your board of trustees will operate, including with regard to committees
• expect you to have effective procedures for managing conflicts of interest, including setting up a register of interests
• expect you to have resolved any concerns about the constitution or size of your board of academy trustees
• ask to see evidence that you have reviewed your initial trustee skills audit as you appoint new academy trustees, and have confirmed which gaps remain
• want to know what plans you have to recruit and train your trustees to make sure you have sufficient skills and experience in place
• check your plans to recruit a chair
• ask for updates on trustee appointments, and for a pen portrait of each new trustee setting out their skills and track record
• expect you to have:
  • recruited the chair of trustees at least 8 months before your opening date
  • established who should be working with the principal designate
  • identified or appointed the majority of the remaining trustees and support staff, such as the governance professional (clerk) and a responsible officer (as a minimum, you’ll need to have a workable plan to fill outstanding vacancies)

More information about academy trust governance structures and roles is available.

See table 3 in annex A for a governance checklist.

Your RG delivery officer will need to provide ministers with assurance and evidence that:

• your governance arrangements are appropriate and rigorous

• you have recruited high-calibre academy trustees

As the school moves towards opening, your trustees should be working with the principal designate on the board’s important documents and protocols ahead of the first board meeting. These will include the school’s development and improvement plan, and a scheme of delegation.

Due diligence

Proposers must comply with the 7 principles of public life. These set out the standards of behaviour expected of anyone who holds public office, including those who work in education. The 7 principles of public life are:

• selflessness

• integrity

• objectivity

• accountability

• openness

• honesty

• leadership

We’ll carry out checks on those applying to establish a free school to provide reassurance of their suitability to manage public money and run a school. These will include:

• due diligence checks

• financial checks

• Disclosure and Barring Service (DBS) checks

• other checks necessary to make sure that free schools are set up and run only by those who are suitable and able to do so

See table 4 in annex A for a due diligence checklist.

The chair of academy trustees is responsible for making sure that:

• they apply for a suitability check, including:

• a new enhanced DBS check provided by DfE’s supplier

• checks on their identity and right to work in the UK – this is necessary regardless of checks performed by other DBS umbrella bodies

• all academy trustees and members have correctly completed the suitability and declarations form

• all academy trustees and members hold or have applied for an enhanced DBS certificate (provided by any DBS umbrella body)

Suitability and declarations form

We carry out suitability checks on members and academy trustees of a trust setting up a free school while it is in the pre-opening phase. Once appointed, all members and trustees must complete the suitability and declarations form. This does not apply to members of LGBs unless the individual is also a trustee. The chair of trustees must take responsibility for making sure that:

• all sections of the form are complete

• members and trustees have signed their declaration pages

• they’re providing a passport-sized picture for each individual

You should scan all completed documents and email the PDFs to due.diligence@education.gov.uk.

During the pre-opening phase, if there are any changes to the members and trustees, the chair of trustees must report these changes by email to their RG delivery officer as soon as possible. Once a free school is open, there is no need to send in suitability and declaration forms for new members and academy trustees.

Disclosure and Barring Service (DBS) checks

The chair of academy trustees must hold an enhanced DBS certificate provided by DfE’s approved supplier. This forms part of the suitability checks.

All other members and academy trustees must hold an enhanced DBS certificate provided by any DBS umbrella body. On appointment, new members and academy trustees must get a new enhanced DBS certificate, even if they already hold one. The chair of trustees must:

• make sure members and trustees meet these requirements

• assess whether any offences or police information disclosed on a certificate mean that individual is not suitable to hold the role of member or trustee

You should perform checks on the principal designate as you would be for any other employee of the school. We do not need a copy of the certificate.

You must make sure that you conduct all relevant checks in line with safeguarding requirements. This includes vetting and barring checks.

Applying for an enhanced DBS check

Chair of trustees

An academy trust’s chair of trustees (not a chair of an LGB) must complete a suitability check with ESFA as soon as you appoint them. This is to comply with legislation and to keep children safe in education. The academy trust handbook sets out a requirement to update governance information (including direct contact details) within 14 calendar days of a change. Free schools in the pre-opening phase will not be able to do this, as the school will not be fully registered on get information about schools until after an Ofsted pre-registration inspection is carried out.

There is further guidance that explains the process to apply for a suitability check. This includes:

• an identity check

• evidence to prove your right to work in the UK

• the outcome of a new enhanced DBS check performed by DfE’s approved supplier

• if you have lived outside of the UK, an overseas criminal records check or a certificate of good character

When completing a suitability check, we’ll consider any further information available to us. This includes whether individuals are barred from teaching or the management of a school.

All other members and trustees

Members and academy trustees (other than the chair of trustees) who already hold an enhanced DBS certificate dated within the past 2 years should email a scanned copy of the certificate to the chair of trustees. The Secretary of State requires the chair to make sure that all members and trustees can present an up-to-date DBS certificate at any time. We reserve the right to request sight of members’ DBS certificates at our discretion.

On appointment, new members and academy trustees must apply for an enhanced DBS certificate, using the DBS umbrella body directory. This applies even if they already have a certificate that was issued within the past 2 years. Once received, they should scan and email their certificate to the chair of academy trustees.

Statutory duty to consult

By law, under Section 10 of the Academies Act 2010 (the Act), your academy trust must consult about your free school proposal.

Section 10 of the Act requires the academy trust to consult with appropriate individuals on whether to enter into an arrangement with the Secretary of State to set up or expand a free school. As set out in Section 10 (1) of the Act, there are some instances where this may not apply.

The statutory consultation should inform appropriate individuals about the project. This process is very useful, as you’ll be able to act on the feedback and suggestions you receive. It should also help raise awareness of your project, and your marketing activity could help to increase pupil numbers.

Speak to your deliver officer if:

• you experience significant opposition from the local community during or following the consultation

• the local authority becomes unsupportive of the project

If your free school has a nursery which is part of the free school (and is not a separate entity), you should include it in the section 10 consultation.

There is no requirement to carry out a section 10 consultation for a nursery that is not part of your free school. For example, it shares a site with your free school. However, it would be useful to mention the nursery as part of your consultation. The responses could help provide evidence of viability or highlight risks. It could also help marketing and local awareness-raising.

The duty to consult rests solely with you. We do not direct or provide specific advice to academy trusts on how you should go about it. You may wish to refer to the Cabinet Office good practice consultation guidelines.

See table 9 in annex A for a checklist for the statutory consultation.

Planning your consultation

It is important to invest some time in planning how you’ll run your consultation to make sure that it complies with your statutory duty. It must be thorough and transparent. You also need to decide whether you’ll carry it out yourself or bring in additional resource to do so on your behalf.

You’ll need to decide:

• when to carry out your consultation

• how long your consultation will take

• who you’ll consult with

• which policies and information about your school you’ll consult on

• how you’ll collect responses to the consultation

The question you should clearly ask those you consult with is whether your trust should set up the free school in question. You should provide information on the particular proposals for your school.

Who you need to consult with

The Act states that you should consult such persons as the trust thinks appropriate. This includes any groups or individuals that may be affected by the opening of your school. Examples include:

• nearby schools

• the local authority

• any surrounding local authorities

• local community groups with an interest

• the local community

• faith groups

How long the consultation should be

This is not specified, but it must be adequate to allow people time to consider the proposal and respond.

When you should consult

Your plans should be sufficiently advanced, to enable those you consult to have sufficient understanding of the school you are proposing.

You must complete your consultation before you sign the funding agreement.

What to consult on

Examples of areas to consult on include:

• staff recruitment

• admission arrangements

• special educational needs and disabilities (SEND) and other policies

• the site for the school (or at least a general location)

How to consult

It is important to give as many people as possible an opportunity to respond. You can use a variety of channels, such as:

• mailshots

• leaflets

• social media

• open meetings

• media announcements

Many academy trusts set up websites for the consultation, but you should make sure the consultation is also available to those without a computer or access to the internet.

Consider translating the consultation materials into other languages if your school will be in an area with a diverse population.

You should be able to provide accessible formats of the consultation, on request. For example, a braille version.

How to deal with responses

You need to build in time to consider all the responses you receive.

You may need to adjust your plans after considering any concerns raised in the consultation.

How to report on the outcome

Once you have analysed the responses to the consultation, you need to consider how you’ll present your findings. The most effective way is to produce a report of the important findings. The report should include:

• quantitative and qualitative information

• details of methods and timings

• details of who you consulted with

• the questions you asked

• any steps you have taken in the light of responses

You should submit your report to DfE with a completed annex D checklist signed by the lead proposer or chair of academy trustees.

How DfE uses your consultation report

When deciding whether to enter into a funding agreement with your academy trust, the consultation forms an important part of that decision.

Section 9 of the Act requires the Secretary of State to consider the impact that opening the free school will have on other educational settings in the area. To do this, your RG delivery officer will carry out an impact assessment at the appropriate time. This will incorporate any related evidence from your consultation.

Funding and finance

This section provides information on:

• the project development grant
• financial governance and accountability
• risk protection arrangements
• school financial planning

The funding that projects receive is public money and you’ll need to be able to demonstrate that the way you use it meets high standards of propriety, is transparent and defensible, and secures good value for money.

See table 5 in annex A for a funding checklist.

Overview of financial management

The academy trust handbook sets out financial management and governance requirements. You must put in place robust governance arrangements and accounting procedures to allow the school to manage public funding responsibly once open.

Project development grant (PDG)

You must effectively plan and manage expenditure during pre-opening, including meeting the terms of the PDG agreement. The grant is for essential non-capital pre-opening revenue costs.

The rate depends on the type of school. There is an initial allocation of £30,000. The full allocation is paid once we have agreed the provisional opening date and heads of terms for the site.

You’ll need to submit a budget profile and statement of expenditure as requested by your RG delivery officer.

Financial plan

You must develop a financial plan that demonstrates your school’s viability on opening within the available funding. You should base it on:

• a realistic and evidenced number of pupils
• realistic staffing requirements
• an up-to-date estimate of expenditure, which you should consider alongside the development of your curriculum
• delivered educational outcomes

We’ll assess the plan at important checkpoints during pre-opening. We must be satisfied that the school will be financially viable before entering into a funding agreement.

Financial statements you need to submit to ESFA

The academies accounts direction describes the form and content of statements to submit to ESFA. You need to be aware of the main submission and publication deadlines.

Essential information you need to provide to DfE

Throughout the pre-opening phase, projects will be required to provide us with the following:

• budget profiles and statements of expenditure for PDG
• evidence of PDG spend
• financial plans with supporting assumptions, demonstrating the school’s financial viability when it opens

Risks you must manage

Mainstream free schools are funded on the basis of pupil number estimates while they’re growing. When a school recruits fewer pupils than estimated or funded for, ESFA will recover the associated funding. This will be based on the October schools census, and any excess funds will be recovered in the following academic year. It is important to note that if this affects your school, you’ll need to make sure you are able to pay that amount back the following year. If not, this could lead to financial problems.

Schools that have under-recruited pupils can also have financial viability issues if their plans do not have sufficient flexibility. We’ll not open a school if it does not believe it will recruit enough pupils to be financially viable.

The pupil recruitment, funding arrangements and risks involved in opening special and AP free schools are different, but we’ll assess these risks and not open such schools if their financial viability is in doubt. Your RG delivery officer will discuss these with you as a minimum at the main checkpoints.

Projects in pre-opening receive PDG to cover all pre-opening costs (except capital). If an academy trust runs out of PDG, we’ll not provide additional funding, except in exceptional cases.

Project development grant (PDG)

In the run-up to your school’s opening, we’ll provide a fixed-rate PDG to cover essential non-capital costs up to the point at which the school opens. Your academy trust will need to profile and effectively manage the spend of this funding, the rate of which is set out in the table that follows.

You’ll be issued with a grant agreement, setting out the terms under which the PDG will be paid. You must read these terms before signing the agreement and returning it to DfE. Your academy trust will need its own bank account into which the funds can be paid. You cannot use a personal or other similar bank account. If your school is part of an academy trust with more than one school, the trust’s account may be used.

The PDG will be formed of 2 elements. You’ll be given an initial allocation of £30,000 and the balance of the PDG funds will be paid in instalments after the provisional opening date has been agreed. This initial £30,000 should be sufficient to meet all the pre-opening costs likely to be incurred by your academy trust until the school’s site is confirmed and we have agreed a provisional opening date with you in writing. The remainder will be allocated at this point, with the schedule of payments modelled around the budget profile you provide for the remainder of time in the pre-opening phase.

The exception to this is any project where the heads of terms for the site and provisional opening date have been agreed at the point the project enters pre-opening. In such a case, the initial £30,000 allocation will not be provided separately but will instead be included in the overall PDG payment schedule.

You must provide regular budget profiles and certificates of expenditure throughout the pre-opening phase. Your RG delivery officer will advise when it will be necessary to provide these returns, but, as a minimum, you are required to provide a budget profile and certificate of expenditure at least once a year. Details of future returns and templates are provided as part of the grant agreement. You may also be requested to provide evidence of spend stated in those returns to provide assurance to DfE as to how the PDG is being spent.

For all grants issued from 1 September 2023, academy trusts have to provide annual certification of expenditure for each grant at the end of each financial year, using annex G of the grant offer letter. If grant activity covers 2 or more financial years, you must get grant assurance at the end of each financial year. You must provide one certificate of assurance for each grant you have been awarded. This assurance must be provided by a third party, the costs of which is eligible expenditure from the grant awarded. This is to ensure that the grant has been used for its intended purposes and in accordance with the DfE grant funding agreement: terms and conditions.

Future payments will be delayed or stopped at any time if the terms of the grant are not upheld – for example, if you don’t make timely expenditure returns, there is inappropriate use of public funds, or your project does not make satisfactory progress. You must inform your RG delivery officer if you forecast that you’ll overspend on the PDG.

If your project is cancelled before the school opens, you must not incur any further expenditure and must return any unused PDG funding, in accordance with the conditions of the grant and as set out in the grant agreement.

After opening, free schools can reclaim value-added tax (VAT) on expenditure incurred during the pre-opening phase from His Majesty’s Revenue and Customs (HMRC). Your RG delivery officer is not able to advise on tax policy. You should seek advice from your local tax office on reclaiming VAT once open. Your school can also retain any VAT it recoups from HMRC on PDG expenditure. The terms of other grants may differ.

PDG funding rates

The amount of PDG you receive will vary depending on the type of school you are opening – for example, secondary, primary or AP.

If your trust is opening a single school in an academic year, you’ll receive the full PDG rate for the type of school you are opening. If you have been approved to open more than one school in an academic year, you are expected to realise efficiencies in areas such as project management, educational services, administration and office costs. You’ll receive full PDG funding for the first school and a reduced amount of PDG funding for each additional school.

If your trust is opening multiple schools, the amount of PDG will be determined by the provisional opening date of each school, as agreed with DfE. This is regardless of when the project was approved to pre-opening. The current rates payable to projects in the pre-opening phase are set out in the table that follows. These amounts are subject to review and may change.

Type of school	PDG funding for first school opening in a given academic year	PDG funding for each additional school opening in the same academic year
Primary mainstream	£220,000	£150,000
Secondary and all-through mainstream	£300,000	£200,000
Special	£220,000	£150,000
AP	£220,000	£150,000
16 to 19	£250,000	£170,000
Local authority presumption	£25,000	£25,000

The number of schools that an academy trust is opening in a single academic year will include any schools approved to pre-opening.

In cases where the provisional opening date is deferred, additional funding will not usually be allocated to the project. The project will retain the PDG rate that it is already receiving, although the payment profile may be amended to reflect the longer pre-opening period. You’ll need to re-profile your budget expenditure plans and resubmit them to DfE.

Planning your PDG budget

You must make sure that all spending is essential to the development of the school during the pre-opening phase and provides good value for money. We do not expect to provide any other funding to meet pre-opening costs. You should therefore think very carefully about how to allocate your budget before committing to any expenditure.

The PDG is intended to cover all revenue costs until opening. It is not intended for the purchase of any resources the school will need once open, such as books and curriculum materials. Capital costs to secure and develop the school site and information communication technology to support the curriculum should not be funded from the PDG.

Typically, projects use their PDG funding to pay for the following:

• project management (support to co-ordinate all work leading to the development of the school, excluding site-related issues)
• educational services
• staff recruitment (including the principal designate)
• salary costs (which often include the principal designate, finance or business manager, and administrative support in advance of opening)
• marketing costs
• consultation costs and open-evening costs
• pre-opening office costs
• administration of admissions (including applications and appeals)
• academy trustee induction and support

Many projects also use their PDG to purchase the financial and management information system the school requires in advance of opening. Where possible, it is good practice to maintain a contingency in your initial financial plan to cover unexpected costs. If any PDG funding is left when the school opens, it should be merged with the school’s budget.

It is up to you to decide how you allocate your PDG spending. Requirements vary from project to project, depending on the local context, the school and the wider resources available to the trust.

The funding you receive is public money and you’ll need to be able to demonstrate that the way you use it meets the highest standards of propriety and secures good value for money. The principles of good governance should apply throughout the project to open the school.

One person within the academy trust should have overall responsibility for managing the financial plan and PDG expenditure. They should be accountable to the trust and DfE for making sure the funding is used properly and the budget is managed well.

You’ll receive the PDG grant letter shortly after the project enters the pre-opening phase. Your RG delivery officer will monitor the progress of the project and check expenditure returns are received and appropriate. They will challenge projects, where necessary, on their use of PDG funding, and can arrange for payments to be delayed or stopped, where necessary. Requests may also be made by your RG delivery officer to see evidence of spend, for example, invoices.

Governance and accounting arrangements

Before opening, your academy trust will need to put in place effective systems for managing the public funding it receives. Putting good governance arrangements in place at this stage will help develop a strong framework for the school on opening.

You’ll need to make sure that the academy trust’s spending choices and decisions are in the school’s best interests and are both transparent and defensible. Your trust will need to be able to demonstrate sound financial procedures, the capacity to handle public money, and good governance arrangements. You must consider the potential for conflicts of interest and have an agreed policy in place setting out how you’ll deal with them. Your RG delivery officer will consider the progress made towards developing effective financial governance arrangements for the school. You must inform your RG delivery officer if you have identified any potential conflicts of interest when spending your PDG.

You’ll need to agree how you’ll manage payments and any related decisions, such as awarding contracts. You must retain original copies of all receipts, invoices, contracts and tender documents. We may ask to review these at any time.

Your academy trust will need to have a robust framework to manage its funding and make sure that proper accountability and procedures are maintained. In the pre-opening phase, important tasks to deliver this include:

• setting out the role of the CFO (for example, a finance director or business manager) and recruiting an appropriate person
• forming the finance committee of the governing board, agreeing its terms of reference, and making sure its membership includes appropriate financial expertise and there is a process in place for checking its financial systems, controls, transactions and risks in whichever way the trust deems most appropriate to its circumstances (see the academy trust handbook)
• ratifying the appointment of the accounting officer (normally the principal for an academy trust with only one school and the SEL for an academy trust with more than one school)
• securing formal governing board approval for the first year’s budget
• developing policies and manuals that give guidance on procurement (including competitive tendering), delegation of responsibilities, financial procedures, internal control (including a split between purchasing, authorising and payment roles) and management of conflicts of interest

The governance section of this guide gives further advice on some of these tasks.

School resource management

Effective schools make the best use of resources, making sure that every pound is used to effect maximum impact for their pupils and the school. Schools that do this well tend to:

• use integrated curriculum and financial planning (ICFP)
• have a strategic approach towards financial planning for the longer term – that is, 3 to 5 years
• deploy their staff effectively and efficiently, linked to their long-term plan
• have robust leadership and challenge from financially skilled governors and school leaders, across the 3 domains of pedagogy, business and governance
• have access to skilled staff responsible for managing finances, who have experience of seeking best value for money when procuring
• have transparent financial systems and processes that encourage constructive challenge within and between schools

The school resource management collection offers tools, guidance and support to help schools build their resource management capability.

The academy trust handbook

The academy trust handbook, together with the funding agreement, sets out the framework for effective financial management, consistent with your obligations as publicly funded bodies.

You must comply with the handbook, both throughout the pre-opening phase and once your school is open. This is outlined within the grant agreements underlying any funding you receive from DfE or ESFA. Non-compliance with the handbook is considered a breach of contract and may trigger various sanctions.

The handbook is aimed at:

• academy members and trustees (including audit and risk committee members)
• accounting officers (principals, CEOs and SELs), CFOs (finance directors, business managers or equivalent)
• governance professionals (clerks) to the board of academy trustees
• local governing bodies of academy trusts
• auditors

The handbook makes clear that the accounting officer is personally responsible to Parliament and to the accounting officer of ESFA for the resources under their control. This personal responsibility extends to making sure there is regularity, propriety and value for money. The accounting officer also has responsibilities for keeping proper financial records and accounts, and for the management of opportunities and risks.

Financial statements

Free schools with a funding agreement with the Secretary of State and an open academy at any point during the accounting period must submit to ESFA by 31 December an audited annual report and financial statements for each year ending 31 August. The academies accounts direction prescribes the form and content of the financial statements. Prior to signing the funding agreement financial statements should be prepared in accordance with company law.

Academy trusts should set their accounting reference date to 31 August at Companies House. This is the date to which their financial statements will need to be produced.

The accounts must also be filed by 31 May (within 9 months of the end of the accounting period) with Companies House. Further information can be found at Companies House.

Other financial returns

Academy trusts must also submit the following financial returns to ESFA, once the school is open:

• a 3-year budget forecast at the end of August
• audited financial statements for the year ending 31 August by the following December
• academies accounts return for the year ending 31 August by the following January
• a financial management and governance self-assessment within 3 months – this highlights the main requirements academies must have in place soon after opening

Academy trusts are responsible for keeping up to date with the latest deadlines and requirements. More information is available at academies financial returns.

Insurance cover: risk protection arrangement (RPA)

A risk protection arrangement (RPA) is an alternative to commercial insurance whereby the government will cover any losses that arise. The RPA will cover all losses that are in the scope of its membership rules.

The RPA membership year runs from 1 September to the following 31 August, but members can join at any time. Free schools can join the RPA scheme via their RG delivery officer and receive cover at no cost in the pre-opening phase.

Free schools do not have to join the scheme and are free to make their own alternative insurance arrangements, but no additional funding will be provided if additional costs are incurred. More information is in the risk protection arrangement guidance.

Developing a viable financial plan

We’ll assess your school’s financial plan before entering into a funding agreement, and in advance of issuing your indicative funding letter, which will set out the level of funding you should expect on opening. We’ll not enter into a funding agreement if we’re not confident the school has a viable financial plan. You must talk to your RG delivery officer if you are unable to submit a viable financial plan.

Developing your school’s financial plan is an ongoing process that should be considered jointly with the development of your curriculum. You should update it as:

• further details of funding arrangements become available
• you appoint staff
• site plans are firmed up
• the projected number of pupils becomes clearer
• other costs are more confidently established

Further updates should take account of the number of staff required to cater for the projected pupil cohort. This may change over time and updates should make sure that staffing structures are affordable and appropriate.

The assumptions boxes on the plan should be used to set out the basis for any estimates of pupil numbers and pupil characteristics, income from sources other than ESFA, and expenditure (including service contracts and salaries).

Guides to free school revenue funding are available for mainstream,16 to 19, special and AP free schools. These explain how the funding for new free schools opening in 2023 to 2024 is calculated and give details of how the post-opening grant provided to new schools as they build up to full capacity is calculated.

You can request the latest version of the templates via revenuefunding.freeschools@education.gov.uk. The rates in the template you used when you made your application may not be the ones for the year in which you’ll open. You’ll need to refresh your financial plan in the spring before opening when the new rates are available. Your RG delivery officer will keep you updated on any changes.

The approval of your application to the pre-opening phase is conditional on you submitting a revised financial plan, using our template, at important checkpoints during pre-opening. This is so we can be assured your school is on course to be financially viable. In particular, you may be asked to share your financial plan with DfE before entering into a funding agreement, which should also include a version modelled around the lowest viable number of pupils for your first year of opening. This information will be used to prepare draft funding allocation packs for issue.

Your RG delivery officer may ask you to revise your plan or give further information, if needed, to show the school will be viable and efficient in using resources to deliver pupil outcomes both during your early years of operation, when pupil numbers are building up, and when your school is operating with all year groups. They will need to see that the school has developed robust and consistent curriculum, staffing and financial plans, and strong financial governance arrangements. These plans should demonstrate clearly how the school will minimise non-staff costs and be efficient, viable and not go into deficit in any year.

Funding for open schools

Mainstream schools

Once the school is open, it will be funded by ESFA. Funding will be paid in equal instalments on the first working day of every month except the first month after opening, when it will be paid on the sixth working day.

The funding for free schools is set at an equivalent level to funding for all other state-funded schools. Funding is largely based on a payment for each pupil who attends the school, but the detailed funding methodology may vary over time with changes to the funding of the school system as a whole.

The government will make sure that any new free schools that are not yet open but are in the pipeline or will enter the pipeline during the 2023 to 2024 academic year are funded consistently with other schools.

In 2023 to 2024, local authorities will remain responsible for setting individual schools’ budgets through a local funding formula. Free schools are encouraged to speak with their local authority about their plans for implementation of the national funding formula (NFF). Funding for schools in 2024 to 2025 will be announced in the summer term.

Financial and therefore educational viability is dependent on you admitting sufficient numbers of pupils. To provide a sustainable, broad and balanced curriculum, there is a presumption that primary provision should have a minimum of 2 forms of entry of 30 pupils, and secondary a minimum of 4 forms of entry of 30 pupils. We do not expect a financial plan to be based on fewer pupil numbers. If you expect this to be the case, discuss your rationale with your RG delivery officer.

Once open, if the October schools census shows the school has not admitted the predicted number of pupils, any excess funding will be recovered in the following academic year. Where more pupils are recruited than have been funded, ESFA will carry out an in-year reconciliation and pay any additional funding in the current academic year.

More information is in the guide to mainstream free school revenue funding.

16 to 19 free schools

Once the school is open, it will be funded by ESFA. Funding will be paid in equal instalments on the first working day of every month except the first month after opening, when it will be paid on the sixth working day. 16 to 19 free schools are funded on the basis of the post-16 NFF.

Funding is largely based on a payment for each student who attends the school, but the detailed funding methodology may vary over time with changes to the funding of 16 to 19 provision as a whole. Financial and therefore educational viability is dependent on you admitting sufficient numbers of students.

Securing financial viability can be particularly challenging for 16 to 19 institutions. If you are proposing a 16 to 19 school with a broad curriculum of A levels, or A levels and vocational qualifications, we would expect this to be a larger school of at least 1,000 students.

If you are proposing a smaller 16 to 19 school, including one with a more specialist curriculum offer, we’ll need to be assured that other arrangements are in place to make sure that it is viable. This could include being part of an academy trust of more than one school or another formalised partnership arrangement, including with other 16 to 19 local providers, which could support the viability of your school through:

• shared services or facilities across providers to increase efficiency and reduce the impact on existing providers – for example, shared back-office functions
• support to extend the curriculum or extra-curricular offer available to students in your school via other local providers, including arrangements to share staff between institutions
• financial support provided to your school that will deliver an enhanced offer to students

We’ll need to assess the nature and sustainability of any partnerships, and if you receive financial support from a partnership, we may need to assess whether your school would remain viable should this support not be available in the future.

In addition to the considerations above, if you are proposing a sixth form as part of a secondary school, you should consider the following:

• size – our expectation is for sixth forms to have a minimum of 200 students, either in the institution or through a partnership
• breadth – our expectation is that a student should be able to choose from around 15 A levels across a range of subjects, either in the institution itself or through a partnership
• demand – including any shortage of post-16 places, and an assessment of the quality of level 3 provision overall in the area and the impact of the new provision on other providers
• financial viability and value for money – including testing financial resilience should student numbers fall and considering the degree and impact on 11 to 16 education of cross-subsidisation of funding from the school’s other budgets

You may be eligible for a programme-weighting funding uplift if you offer a curriculum that is particularly expensive to deliver, such as engineering. You may also be eligible for funding uplift if you anticipate higher disadvantage levels than the local authority average. If these criteria apply, you’ll be asked to provide a business case to establish any additional funding you might attract to reflect the extra costs associated with technical programmes of study or high levels of disadvantage.

Once open, if the October schools census shows the school has not admitted the predicted number of pupils, any excess funding will be recovered in the following academic year. Where more pupils are recruited than have been funded, ESFA will carry out an in-year reconciliation and pay any additional funding in the current academic year.

More information is in the guide to 16 to 19 free school revenue funding.

Special free schools

Once the school is open, funding will be calculated and paid in the school’s first year by both ESFA and local authorities commissioning places at the school.

Once the school is open, it will be funded by ESFA. Funding will be paid in equal instalments on the first working day of every month except the first month after opening, when it will be paid on the sixth working day.

Funding for special free schools is included in local authorities’ high-needs allocations. The number of places to be funded at special free schools from their second year of opening onwards will be agreed with the local authority through the place-change notification process.

Funding in special free schools comprises:

• flat-rate per-place funding from ESFA for a number of full-time-equivalent places – this will be paid for a number of places, be subject to regular review by the local authority for the area in which the school is located, and be dependent on local authorities’ commissioning of places for pupils with education, health and care (EHC) plans
• per-pupil top-up funding from the local authority commissioning a place – this is determined in negotiation with the school based on a pupil’s assessed needs and the cost of meeting them in school, is paid for as long as the pupil attends the school, and will flow directly between the local authority and the school

Pupils without EHC plans can only be admitted to special schools in certain circumstances – refer to the SEND code of practice and your funding agreement for further details.

Special free schools, like other special schools, can also receive funding from local authorities and other schools for commissioned services – for example, to provide specialist teaching support for pupils in local mainstream schools.

In all cases, the income special free schools receive, and their future viability, will depend on providing the places needed locally and on local authorities’ willingness to place pupils with EHC plans at the school and fund the special provision on offer. Local authorities often have standard rates of top-up funding for pupils with different levels of need, which they use for maintained special schools and special academies. Local authorities should publish information about their top-up funding arrangements. Special free schools should expect to operate on similar levels of funding from local authorities.

More information is in the guidance on special free school revenue funding.

Alternative provision (AP) free schools

Once the school is open, funding will be calculated and paid by both ESFA and those commissioning places at the school. Funding will be paid in equal instalments on the first working day of every month except the first month after opening, when it will be paid on the sixth working day.

AP free schools are established in response to demand by local authorities or local schools. Evidence of this demand is needed to support the establishment of the school. Local authorities are responsible for making sure that adequate alternative provision is available for pupils in their area who are not at a mainstream or special school. The detailed funding methodology may vary over time as changes are made to the school and high-needs funding systems.

From the third academic year after an AP free school opens, ESFA starts to deduct an appropriate proportion of the place-funding from the high-needs funding block within the dedicated schools grant (DSG) of the local authority where the pupil resides. This is because some AP free schools accept pupils from local authorities other than the one in the area in which they’re located, or from schools and academies in other local authority areas.

Funding in AP free schools comprises:

• funding from ESFA for each full-time equivalent place for a pre-16 pupil, which – as for all funding – is subject to regular review
• per-pupil top-up funding agreed by the provider and commissioner (a local authority or another school) and paid by the commissioner direct to the provider for each pupil to meet any costs exceeding the base funding threshold
• per-student funding from ESFA for students aged 16 to 18
• any other funding received from a local authority or school commissioning a service such as outreach work in local schools

AP free schools’ continuing financial viability depends on both the ongoing support of local authorities and schools or academies, in terms of a commitment to commission places and services, and their willingness to provide associated funding. You’ll need to show evidence before you open that places are being commissioned at your school.

This evidence should be accompanied by a recognition of the costs of the AP and the value for money the school will offer, an understanding of how those costs will be met by local authorities and schools in the area, and an assessment of the affordability of the provision based on these factors.

More information is in the guidance on alternative provision free school revenue funding.

High-needs funding overview

High-needs funding is allocated from the local authority’s dedicated school’s grant (DSG) high-needs block to provide support for children and young people with SEND, and to meet their needs as identified following a statutory education, health and care (EHC) needs assessment.

Mainstream pre-16 free schools are expected to meet, from their core general annual grant, the costs of additional support for a pupil with SEND, up to £6,000 per year.

Mainstream pre-16 free schools with a special unit or resourced provision fund pupils with SEND from their mainstream funding plus £6,000 for each occupied place and £10,000 for each of the unoccupied places or places occupied by pupils from other schools. The overall number of places is determined by the local authority in consultation with the school.

An AP free school or special free school receives funding of £10,000 per year for each school place, based on the number of places determined by the local authority in consultation with the school (for special free schools) or by ESFA in consultation with the school (for AP free schools)

High-needs top-up funding is paid by the local authority, or (in the case of AP) the school commissioning the placement, for the costs in excess of the above £6,000 threshold or £6,000 per £10,000 place funding. This high-needs funding is normally provided following a statutory assessment or EHC plan, but local authorities also have the discretion to provide top-up funding to children and young people up to the age of 19 without an EHC plan.

The local authority bears the ultimate responsibility for decisions on the number of high-needs places and top-up funding. It is accountable for spending from its high-needs budget, but we expect the level of support and rates to be discussed and agreed with individual free schools.

More information on high-needs funding is in the guidance on high-needs funding arrangements 2023 to 2024.

Funding for free school nurseries

If your free school includes a nursery, it will be funded on the same basis as other early years provision, rather than via the same formula as other free schools. This is because the Secretary of State does not enter into a funding agreement in respect of nurseries, as they’re funded either by local authorities or by parents paying for places. Our expectation is that the school and the nursery should each be financially viable without reliance on cross-subsidy.

All 3- and 4-year-olds, and disadvantaged 2-year-olds whose parents receive certain benefits, are entitled to 570 hours of funded early education each year. These entitlements are commonly referred to as ‘15 hours early education’ entitlements.

3- and 4-year-olds are eligible for an additional 570 funded hours per year if both parents (or the sole parent in a single-parent family) are employed and earn above the minimum or living wage for 16 hours per week but neither has a taxable income of over £100,000. Further information regarding the criteria for funded childcare can be found at get childcare: step by step. This entitlement is more commonly referred to as ‘30 hours free childcare’. A nursery cannot put conditions on the free hours (for example, allowing parents to access their free entitlement only if they agree to take additional paid hours or pay for lunches), but parents should have the opportunity to pay for additional hours or consumables if this is something it offers.

If a parent chooses to take their free entitlement in a nursery that is part of a free school, the local authority will fund that provision from their DSG allocation at an hourly rate agreed by the local schools forum. The local authority is required to fund only the children who attend the nursery, not to fund empty places.

For the 2023 to 2024 financial year, the early years national funding formula (EYNFF) includes a minimum hourly funding rate for local authorities of £4.87 for the 3- and 4-year-old entitlements and a requirement for local authorities to pass 95% of funding direct to providers.

The EYNFF also established a disability access fund, which, from 2022 to 2023, pays at least £828 per year for each eligible child, to enable them to access the free entitlement. It also places a requirement on local authorities to establish a special educational needs inclusion fund to support children with SEND to achieve good outcomes in the early years. Further information on the EYNFF is available at early years funding: 2022 to 2023.

To receive funding for free early years entitlements, your nursery must either be registered on the early years register (EYR) or be exempt from such registration (see inspections and registrations as an independent school) for further details). When these criteria are met, the local authority must make sure that free childcare is available at the early years provider (including nurseries) of the parent’s choice. This is provided that the nursery is willing to provide the funded place, accept any terms of payment, and comply with the learning and development and safeguarding standards and requirements in the early years foundation stage framework (EYFS) – for example, requirements in respect of SEND, safeguarding and maintaining Ofsted quality standards.

A free school nursery may charge parents for additional hours above the free entitlement and is free to decide its own rate for this additional provision, but it cannot charge for the free hours that are funded by the government. It is allowed to make a profit, but the accounting must be separate from the school’s general annual grant, and the provision must be set up as one of the following:

• direct provision by the free school – any surplus can be reinvested into the school
• a not-for-profit charitable company – the company can retain any trading surplus as a reserve or reinvest this into the school
• a for-profit company – the profits can be reinvested into the school once the company has accumulated a prudent reserve

The local authority will want to ascertain that any provider is mindful of the impact of additional charges on the most disadvantaged parents.

Procurement and additional support

Academy trusts are public bodies. This means they must comply with public procurement regulations. It is important that you understand these requirements when you are planning any purchase.

Academy trusts are accountable for their decisions and expenditure. Your RG delivery officer will monitor the progress of the project. They will also check that we receive appropriate expenditure returns.

See table 2 in annex A for a procurement checklist.

Purchasing goods and services

Schools need to buy a wide range of goods and services. You may use different suppliers to help you do this, for example:

• public sector buying organisations

• procurement consultancies

• local authority traded services

This diversity can offer opportunities to improve efficiency, but navigating the system can be complex. Detailed guidance on buying for schools is available. It includes advice for buying goods and services such as:

• energy

• ICT

• catering

• transport

• legal services

• furniture

You can also use the:

• get help buying for schools service to get free help and support with buying goods and services

• find a framework tool to find DfE-recommended suppliers

The schools buying strategy outlines the support available to help schools improve value for money from their non-staff spend.

Understanding the rules and regulations

You’ll need to make sure you understand buying procedures and procurement law.

It is a good idea to set out the academy trust’s approach to procurement within your financial management policy. This means thinking about how you’ll:

• approve and review your expenditure

• delegate any financial powers, so it is clear who is responsible for what

You’ll need to be clear about how best to use your project development grant. Review your proposer group’s capacity and capability to:

• decide what you can deliver for no cost

• estimate the total value of what you need to buy

Remember that value for money is not always about the lowest price but involves getting the right balance between quality and cost. Think about how you’ll measure this when you evaluate your purchase. You need to be able to demonstrate you have used public money effectively and efficiently. There is more detail on typical areas of spend on goods and services in the section on funding and finance.

Making procurement decisions

Having a good range of expertise in your proposer group and an understanding of capacity or capability can help you:

• decide what you can do for yourselves at no cost

• decide when there will be a need to buy in support

• negotiate and push back on costs to get a better deal

Good procurement decisions will help you get the right support and achieve value for money. If you do not follow a fair and transparent process and apply criteria consistently, you are less likely to identify the best proposals from potential suppliers.

Poor procurement decisions risk wasting time, money and slow down progress. They also risk reputational damage, if potential suppliers think you are not being fair and a perception that they’re not using public funds properly.

If you fail to follow the requirements of the public procurement policy, you could be open to legal challenge from a supplier. If the challenge is successful, this could lead to:

• having to cancel the contract

• re-holding the procurement competition

• getting compensatory financial penalties

Site and buildings

This section explains how our capital team will work with you to find and secure a suitable site for your school. Download ‘Customer Journey: Building your School’ on Create: Schools for more information on the process for delivering the site and building your school .

See table 6 in annex A for a checklist to help deliver your school site and buildings.

Finding a site

Finding the right site for your free school is very important. It can also be the most time-consuming, complex and frustrating aspect of your project. You should make sure that you do not get distracted by the site at the expense of the other important tasks during the pre-opening phase. Establishing clear roles in your proposer group is crucial. We recommend having one person who leads on site related matters and works with our capital team.

The earlier we secure a site, get the relevant planning permission and agree the building works, the better. Having these in place can be very useful when marketing your school to prospective parents, pupils and staff.

The length of time it takes to secure a permanent site will vary for each free school project. Important factors when it comes to finding a site are your school’s operational requirements and the location. It is difficult to find suitable sites in some regions. For this reason, you may need to be flexible about where the school is located (as well as about the year of opening).

You should work with your capital project director throughout the process to make sure that the site is suited to the needs of your proposed school. You may need to be flexible, it is not always possible to deliver a site and buildings that exactly match your preferred specifications, due to constraints such as cost, size and time.

The average time taken to secure a suitable site is around a year. The normal lead time for acquiring and delivering sites ready for a school to open is around 3 years. Unless a site is already secured and requires little work and no planning approval, opening in a shorter period will be extremely challenging. Whilst it is important to secure a site that is appropriate for the school, we must also achieve value for money for the public purse.

You should not announce the site for your school until our capital project director has confirmed they have secured the site and it is appropriate to do so. This is because commercial negotiations are highly sensitive. Premature public announcements about acquisitions can undermine commercial negotiations.

Free schools can be located in a wide variety of premises. They may not look like traditional school buildings. They have historically been in refurbished or remodelled accommodation. They will often not require the construction of completely new buildings but can be in new-build facilities.

We have adopted a presumption in favour of offsite construction, where it represents value for money. Off-site construction is the manufacture and pre-assembly of construction components, elements or sub-assemblies that are then brought to the site. There are a number of factors to consider when establishing if a project is suitable for offsite construction. Further details of the process are available in guidance on modern methods of construction.

After the approval of your proposal, our capital team will join your project’s kick-off meeting, along with your RG delivery officer. During the meeting, we’ll discuss the suitability of the proposed premises and consider any alternative site solutions. Before this meeting, the capital team, working with DfE’s property service team - LocatED, will have reviewed the suitability and availability of any sites you have proposed in your application. We may also have:

• contacted the relevant local authority about planning designation

• considered the availability of government buildings

• commissioned LocatED, the government-owned property company responsible for buying and developing sites for new schools in England, to undertake a site search, and considered alternative sites where relevant

We realise you may already have a preference for a particular site, but you should be aware that it might not be the most feasible one. Common reasons why that might be the case include:

• it is too small or too big for the number of pupils

• it is not yet on the market, or will not be available in the time required

• it is too expensive to buy, lease or maintain

• it requires too much work to be affordable

• it does not have, and we may not be able to get, the appropriate planning permission to become a school

• it is a listed structure – securing planning for change of use and works would be expensive, complicated and time-consuming, increasing the risk of delays

Keep an open mind regarding sites. Just because a site doesn’t look like a school, it doesn’t mean it cannot become one.

Securing a site

Once we have identified a site, we’ll begin negotiations to acquire it. The 6 ways of acquiring a site are:

• a peppercorn-rent lease, usually agreed at a nominal rent of £1 per year – we consider this a ‘free site’

• an S106 agreement between a local authority and a developer that commits the developer to providing land or financial support – this could mean:

• making a monetary contribution

• providing the land on a peppercorn-rent lease

• providing the land and partially or fully paying to build the school

• a peppercorn-rent lease for land held by the academy trust

• a peppercorn-rent lease pursuant to development

• a freehold commercial purchase

• a commercial lease

There will be sensitive negotiations around acquiring a site for your school. Site owners want to secure the best possible deal for themselves. It is our duty to secure the best value for both you and the taxpayer.

Check with your capital project manager before discussing details of the site you are seeking to anyone outside your proposer group. These negotiations are very commercially sensitive.

Planning applications can also be affected if information about sites is released at the wrong time. Securing planning approval is crucial to delivering your school buildings. At the appropriate time, we’ll welcome the support of the academy trust in establishing a base of support for the proposal with planning officers and elected members at the relevant local planning authority.

Our capital project manager will tell you when you can publicly confirm your site – see the section on statutory consultation.

DfE’s responsibilities in finding and securing a site

Where a local authority or diocese make a site available, our property services team will lead the process. They will work closely with your project manager. Inform our capital project director if you have any information or local knowledge you would like us to be aware of.

You should work with our capital project director throughout the process to make sure that the site meets the needs of your proposed school.

If we need to complete a site search for a commercial lease or freehold commercial purchase, we’ll:

• conduct searches and provide you with a suitable site

• visit and assess the site to provide a high-level view of:

  • the nature and cost of any construction works needed

  • the planning consents required

  • the likely running costs

• start negotiations to acquire the site, if an assessment shows it is affordable and good value for money

LocatED will take the decision to secure any market or commercial site. We’ll give you an opportunity at the start of the process to have an input into the commissioning instruction. It is important that you take this opportunity to give your views. The commissioning instruction will form the basis for the decision to secure a site.

LocatED will estimate the total costs for the site and get approval to complete the acquisition. Lawyers will carry out checks on the tenure, ownership and any restrictions affecting use of the property and complete the transaction. The time this takes will vary from property to property, depending on planning permissions and other issues.

Before finalising its decision to acquire a site, LocatED will need to get confirmation from the capital project director that the site meets the original commissioning instruction. The capital project director will keep the trust involved throughout and inform you of the site selected.

You must not enter into negotiations on sites. Doing so would undermine the negotiating position of the experts commissioned to undertake that task.

Interim site solutions

In some cases, free schools have opened on a temporary site before relocating to their permanent buildings. For example, where there is a pressing basic need for additional places and the permanent site is not ready.

Once we have secured the permanent site, we’ll work with you to establish whether opening in temporary accommodation is appropriate. This means:

• assessing the risks to the delivery of the project’s permanent site including securing planning permission
• evaluating the viability of any proposed temporary solution
• checking there is clear evidence of the need for additional school places in the area
• making sure the temporary solution:
  • meets the needs of the pupil cohort
  • provides value for money compared to other schools of a similar phase and in a similar location

The decision to open in temporary accommodation must be supported by DfE, the local authority and the academy trust. The temporary accommodation should normally be for a maximum of one academic year.

Temporary solutions can come in many forms, depending on what your requirements are and what is available. The most common are using:

• an existing building on the permanent site while other buildings are under construction

• modular temporary accommodation on the permanent site

• modular temporary accommodation on a commercial site that is available on a short term lease

• community buildings such as a church hall or community centre

• part of a neighbouring school

• a local office building

The refurbishment of an existing building is likely to provide the best value for money.

We’ll manage the procurement and costs associated with temporary site works, such as the rental of temporary classrooms.

Difficulties in securing a site

We may contact you to inform you we’re considering cancelling the project if your project:

• has spent considerable time in the pre-opening phase without a secured site

• is not making sufficient progress despite numerous interventions

During this process, we’ll explain why we’re considering taking this action. You’ll have chance to respond before the minister takes a final decision to cancel the project.

The site and your statutory consultation

Section 10 of the Academies Act requires proposers of free schools to consult formally with those they think appropriate. You must complete the statutory consultation before you sign the funding agreement.

Ideally, you should do this once we have secured your permanent site, but in practice that may not always be possible. If it is not possible, you could identify a particular catchment area for the free school, such as a postcode, or a particular area of a city or town. We’ll agree with you what information you’ll need to provide so you do not undermine any site negotiations.

The site and your funding agreement

Other than in exceptional circumstances, we’ll not enter into a funding agreement until heads of terms have been agreed for the permanent site and any temporary site, if relevant. We’ll need to be confident there is a strong prospect of securing a permanent site and approving the full capital budget for your project.

As part of the funding agreement, there will be a set of land clauses. These aim to:

• protect DfE’s public investment in acquiring and developing the land

• make sure that the academy trust continues to meet its legal obligations as set out in the funding agreement

The land clauses in the funding agreement must reflect the relevant model drafted by DfE. Your RG delivery officer will confirm the clauses and any bespoke legal arrangements that may apply.

Your legal obligations include the responsible stewardship of the site and buildings under the standard repair and maintenance requirements in all DfE leases. Detailed guidance for academy trusts on effective building and site management is available.

Pupil recruitment and marketing

You’ll need to make sure that you have a relentless focus on pupil recruitment and an effective marketing and recruitment strategy in place.

You must market your school to:

• encourage applications from pupils from a range of different ethnic, religious and socio-economic groups, including those from disadvantaged backgrounds
• promote a pupil intake that reflects the diversity of your wider local community

Recruiting sufficient pupils

To provide a broad and balanced curriculum, there is a presumption that primary provision should have a minimum of 2 forms of entry of 30 pupils, and secondary provision a minimum of 4 forms of entry of 30 pupils. We do not expect your published admission number to be set below this number. If you expect this to be the case, contact your RG delivery officer to discuss the rationale.

When recruiting, you:

• should regularly update your RG delivery officer on the number of applications you have received
• must inform your RG delivery officer if the number of applications received by the deadline date, or the accepted offer numbers by national offer day, fall short of the above-minimum-viable expectations
• should continue with your marketing efforts throughout this period, as historically there can be a drop of around 30% from the number of applications received to the number of pupils who will accept places

It is essential to attract sufficient pupils to make sure that your school is viable. Evidence of high levels of demand for your school does not automatically equate to large numbers of applications or referrals. Similarly, do not assume that when you offer places, all those offers will be accepted.

The importance of marketing activity

Successful pupil recruitment is an essential element of the pre-opening phase. Attracting sufficient pupils to make sure that your school is viable is essential. Financial viability, educational planning and staff recruitment all depend on pupil numbers.

You should not assume that high levels of demand for your school when canvassing for support will automatically equate to large numbers of applications or referrals. Similarly, do not assume that the offers you make will all be accepted. It is essential that you have an unrelenting focus on pupil recruitment.

You may have had very high levels of interest in your free school, but you need to convert this into applications or referrals. During the pre-opening phase, your marketing activity should increase and build on the publicity and interest you have already garnered, to show those who have already expressed an interest that the school is moving to the next stage. It will help give them confidence in the school and encourage them to make an application or referral. It will also give you the chance to attract new parents who may not have paid much attention to the proposed school so far but who would be interested now it is becoming a reality.

Mainstream and 16 to 19 projects

You may find it useful to analyse the types of responses you have had to date and assess where and how best to concentrate your efforts, for these reasons:

• some applicants will have made a firm commitment and you need to keep them engaged, even after you have offered them a place, to make sure they accept
• some potential applicants will have expressed interest without committing to applying and you need to convert that interest into applications
• some people will not have been particularly interested, but as you move into the pre-opening phase, you can confidently begin to engage them as much as possible

Faith-designated free school projects, projects with a religious ethos, and those with a distinctive educational philosophy or world view

It is important that your proposed school is likely to attract applications from all parts of the local community, not just those of your faith group. Therefore, you must market the school to a diverse cross-section of the local community.

Alternative provision (AP) projects

AP schools do not follow the normal pupil admission arrangements and are not subject to the school admissions code. Instead, many placements will be made by local authorities through their statutory duties to offer alternative provision for pupils who do not have a full-time school place, and some will be commissioned directly by schools. It is essential to engage with local authorities and commissioning schools to make sure that there is demand for the provision the school will offer.

You may find it useful to analyse the types of responses you have had to date and assess where and how best to concentrate your efforts, because:

• some commissioners will have made a firm commitment and you need to keep them engaged
• some commissioners will have expressed interest without providing written commitments for places and you need to convert that interest into referrals
• some commissioners will not have been particularly interested, but as you move into the pre-opening phase, you should build a relationship with them to engage them as much as possible

Special free school projects

Special schools do not follow the normal pupil admission arrangements and are not subject to the school admissions code. Instead, all placements in special schools will be made by local authorities, either following the completion of a statutory EHC assessment or while the assessment is being undertaken.

Local authorities are responsible for commissioning and funding special schools through both a number of high-needs places agreed each year and ‘top-up’ funding for individual pupils. It is essential to engage with commissioning local authorities to make sure that their need for special provision places matches what the school will offer.

Promoting integration and community cohesion

Promoting integration and community cohesion is a priority for the government. All schools should prepare children and young people to participate fully in life in modern Britain. Schools should be genuinely welcoming and attractive to pupils from different backgrounds. When marketing your school, you must consider how you can encourage applications from families belonging to different ethnic, religious and socio-economic groups, to promote a pupil intake that represents the diversity of the wider local community.

To make sure that your marketing plans support integration and community cohesion, you’ll first need to consider the demographics of the community your school will serve – for example, the main ethnic and faith groups represented, the proportion of pupils who are disadvantaged, and where pupils from different backgrounds live. When considering whether your marketing plans are appropriate, you should consider:

• the characteristics of the school that are emphasised in publicity materials, which should not discourage parents from particular socio-economic, ethnic or religious groups from applying to the school
• where marketing events are advertised and held, and whether prospective applicants from a representative range of backgrounds are likely to know they’re taking place, or the location and timing might prevent, deter or make it difficult for some groups to attend
• if publicity materials are distributed or posted online, whether they’re likely to be visible and accessible to prospective applicants from a range of backgrounds that reflects the diversity of the wider local community
• for secondary schools, whether the marketing activities are targeted at particular primary schools, and, for example, whether the pupil intakes of these schools reflect the diversity of the wider local community
• whether you have engaged with representatives of the major faith communities represented in the area and sought their support for the school
• admissions policies, staff recruitment, curricular and extra-curricular activities

Marketing guidance

There are some general principles and lessons learnt by previous proposer groups that should help you get the most out of your planned activity. It is important to maintain momentum, for example, so make sure that:

• newsletters are issued regularly
• emails are answered quickly
• online information is up to date
• you publicise important milestones, such as the appointment of a principal designate or securing your site.

You may wish to consider the guidance in the following sections.

Knowing your audience

When preparing your application, you’ll have looked at local context, such as where there is a need for places and how existing local schools are performing. You should use this information now to target your efforts.

Being aware of disadvantage

Use your understanding of your local community to attract applications from disadvantaged groups – for example, by running taster days for pupils from local primary schools that have a high level of disadvantage in their intake. By effectively targeting disadvantaged groups, you’ll contribute towards closing the attainment gap for disadvantaged pupils, enabling them to benefit from the high-quality education your new free school will provide.

Engaging with the local authority

Engage with the local authority in which your school will be based so the provision your school will offer for pupils with SEND can be included in the local authority’s offer. This is particularly important for special schools, but also applies to mainstream schools.

Appointing a spokesperson

It is a good idea to have a dedicated spokesperson, so you have a consistent profile, especially as far as local media are concerned, so they always know whom to contact.

Using local radio

Local radio is a powerful tool. You can book paid advertising space (though you’ll need to book slots well in advance), but you can also get free publicity by suggesting creative ideas for programme content, such as offering a spokesperson for an on-air debate or a phone-in programme.

Assembling a list of named media contacts

In dealing with the media, try to assemble a list of named contacts. Find out who is the education correspondent for your local newspaper or the relevant programme producers at your local radio station and give them a call. Make sure they know who will be sending them public relations information and who in your group they can contact if they need to.

Distributing newsletters

Consider producing regular newsletters. You can distribute copies online, printed copies locally, or via email to your contact list.

Providing translations into other languages

Make sure you translate all your communications into languages that reflect the make-up of your local community.

Making use of your website and social media platforms

It is essential to have comprehensive information available on your website and to update it regularly. It will help to have a dedicated member of the academy trust to maintain the site.

It is best that your email account uses the school’s name, rather than an individual’s, to project a more professional image. Make sure that all enquiries are followed up quickly and ask correspondents if they’re happy to add their email addresses to your contact list to receive future information and updates.

Consider setting up an online forum for parents, young people and, in the case of special or AP schools, potential commissioners, to make it easy for them to raise any questions or concerns.

Many areas now have community pages on social media, so start a discussion thread with some information about your school. Again, it is important to respond quickly and follow up queries. In addition, think about setting up a blog or a Twitter or Instagram account via which you can give regular updates on your progress.

You can also maintain your profile locally and nationally, especially with the media, by creating and regularly updating your own social media platforms.

Meeting people face to face

Previous proposer groups have found that face-to-face contact with parents and prospective commissioners has proved especially effective and can build on any written or online information you have produced. It can be as simple as knocking on doors and canvassing opinion and support. Be prepared to put in time and effort to engage with the community as a whole and to make sure that your group is known to local people. You may wish to consider developing online or virtual events as an alternative and have online versions of application forms available, too.

Events provide an effective platform to promote your free school and can provide an opportunity for parents and pupils to meet the principal designate and teaching staff. Make sure you have application forms available at these events – take parents’ contact details and follow-up with an email or a leaflet.

Previous groups have found that holding events with a theme can attract more people and give them a flavour of what your school would be like. Mock lessons and enrichment days that demonstrate the school’s pedagogy, for example:

• creative writing sessions
• fun science experiments
• dancing and singing
• creating a performance

After the announcement of GCSE results, and even AS level results, as some students switch schools or colleges after year 12, it’s useful to have a stall in a public place to recruit students and to publicise your attendance in advance.

Visiting feeder schools (if applicable)

Engage with local feeder schools, if applicable. Offer to speak at assemblies or have a presence at school events such as parents’ evenings and transition days.

Engaging with religious organisations (if applicable)

If yours is a faith school, you’ll need to make contact with and have the support of your religious body and, if relevant, broader local religious organisations.

Admissions

This section will provide you with tools to help make sure you have a clear, fair and compliant admission or referral process. It will set out the admissions processes for the different types of free school.

You have set out the vision for your school, which may be to improve standards in a particular area or address a deficit of places, and your admission arrangements can help you make that a reality. For example, you may intend to prioritise places for children from disadvantaged families, and you can achieve this by giving priority in your arrangements to those eligible for the pupil premium.

See table 7 in annex A for an admissions checklist.

You must have admission and referral policies that, depending on the type of school, comply with the school admissions code or the relevant guidance and your funding agreement.

We strongly advise that you use the relevant admission template in drafting your policies.

You must not arrange for your school to be included in the local authority co-ordinated admissions process without seeking the prior agreement of your RG delivery officer.

If you are opening a mainstream free school, we expect you to consider how you could use your admission arrangements to enable pupils from different backgrounds to access the school, to promote an intake that reflects the diversity of the wider local community.

Risks

Your admission or referral arrangements must be strong enough to withstand challenge. Unlawful admission arrangements can result in significant resourcing issues, while complex or overly prescriptive admission arrangements could put off potential applicants.

Previously, a significant number of admission policies and application forms submitted to DfE failed to comply with the school admissions code. For this reason, schools should use the admissions templates.

Essential information you must provide

During the pre-opening phase, you must confirm to your RG delivery officer that you have developed your admissions arrangements, and that you are satisfied they comply with the school admissions and school admissions appeals codes or relevant guidance and funding agreement.

Mainstream free school admissions

Because your school will be an academy, the academy trust is the admission authority. This means you are responsible for:

• making sure your school’s admission arrangements comply with the school admissions code and the school admission appeals code, including the code requirement that the arrangements should be fair, clear and objective - 16 to 19 free schools do have to comply with the school admissions or appeals code
• consulting on the proposed admission arrangements, before you open, as part of the consultation you’ll carry out under Section 10 of the Act
• complying with the mandatory requirement to admit all pupils with an EHC plan naming the free school, and having regard to the SEND code of practice
• determining (or finalising) the school’s admission policy, once you have your funding agreement in place
• consulting on and determining future admission arrangements after the school opens, in accordance with paragraphs 1.45 to 1.53 of the school admissions code
• managing applications to the school – you’ll be responsible for this in the first year (either by managing the process directly or agreeing that the local authority will do it) and the local authority will do this as part of its co-ordinated process in subsequent years
• organising an independent admission appeals panel (or contracting this out) in compliance with the school admission appeals code

Every mainstream free school must operate within the local fair access protocol. This is established by the local authority to make sure that, outside the normal admissions round, unplaced children, especially the most vulnerable, are offered a place at a suitable school as quickly as possible.

Nursery admissions

The school admissions code does not apply to nurseries, including those that are part of a school. As such, there is no requirement on them to adopt objective admissions criteria.

It is possible for schools to prioritise children for admission to reception who attend a nursery that is part of the school, or established and run by the school, in their criteria for admission to reception. However, you must make sure that giving priority is fair to local parents who choose not to send their child to nursery, taking into account the location of the school, the availability of reception places in the area and the number of places offered without any reference to whether the child has attended the nursery.

In most cases, such arrangements are likely to be unfair, and vulnerable to objection, if few or no places are available to other children once those attending the nursery have been admitted to reception. In such circumstances, it is strongly recommended that your nursery admission policy is the same or similar to your policy for admission to reception, to minimise the risk of objection. You must discuss this with your RG delivery officer, to make sure that your policy for admission to reception is compliant with the school admissions code.

Within any priority given to nursery children, the school may prioritise those children attending the nursery who are eligible for the early years pupil premium, the pupil premium or the service premium above other children attending from the nursery (see paragraph 1.42 of the schools admissions code).

Fee-paying nurseries cannot be named as a feeder institution to your free school. However, it is possible to give priority to those paying fees for their child’s nursery provision where any fee is for additional provision above the ‘free’ 15- or 30-hour funded early education offer.

The admissions process (including co-ordination)

In your first year of opening, our normal expectation is that you either:

• operate your own admissions process
• arrange for the local authority to process admissions on your behalf

Either way, this should be done outside the local authority’s co-ordinated admissions process. You must not arrange for your school to be included in the local authority co-ordinated admissions process without seeking prior agreement from your RG delivery officer.

After your first year of opening, your admissions must be handled through the local authority’s co-ordinated admissions arrangements, like all other schools in the area. However, while your project is at the pre-opening phase, local authorities cannot offer places at your school under the co-ordinated admissions process until the Secretary of State has entered into a funding agreement with the academy trust. This is because, in law, a local authority can only make a firm offer for a place at an open school.

Your RG delivery officer will not advise the Secretary of State to enter into a funding agreement for your school until we’re confident it will open successfully on its proposed date.

It is important to make sure parents applying for your school are not left without a place, or with a place at a school they would not have chosen, if for any reason your school’s opening is delayed. Parents should make an application for other schools as well as yours, by submitting the common application form to their home local authority.

There are 3 options for handling the admissions process. Unless you choose to follow option 2a, you’ll need to produce an application form and set out the application process in the admission policy. This should include:

• the closing date for applications
• the (conditional) offer date
• where to submit the application

Option 1: the school handles the application process

Parents make a stand-alone application direct to the free school. The school will provide an application form, set the application deadline and offer day, and manage the process of considering applications and making offers itself.

You should encourage parents who apply to your school to submit a common application form to their home local authority to apply for other schools as well, in case your school doesn’t open in time. If your funding agreement is not signed by national offer day, you can make conditional offers, while parents can accept the place allocated by the local authority at an existing school as an insurance place. If your school’s funding agreement has been signed by the national offer day, you’ll be able to make firm offers.

Even if you manage the application process yourself, the local authority must still publish the school’s admissions policy both in its composite prospectus and online.

Options 2a and 2b: the local authority handles the application

There are 2 ways the local authority could manage the process for your school. Local authorities are under no obligation to process admissions for proposed free schools before they have a funding agreement in place, so if you want to do this, you’ll need to secure agreement from your home and neighbouring authorities.

Option 2a

The local authority handles the admission process as if the school were in co-ordination, but if the funding agreement is not signed by national offer day, the local authority would make a conditional offer for the free school alongside a firm offer for another open school.

Parents would submit the common application form to their home local authority, naming the free school as one of their preferences, and normal deadlines would apply (31 October for secondary schools and 15 January for primary schools). Parents would be encouraged to name other preferences as well, in case the free school doesn’t open in time.

This option is unlikely to be open to a free school if its final admission policies are not in place in time for them to be fully included in the process. It is not possible for proposed schools in any of the local authorities included in pan-London co-ordination (the process whereby the 33 London boroughs, the City of London Authority, Kent, Essex, Hertfordshire and Thurrock local authorities co-operate in a computerised allocation system), because the process adopted by these local authorities does not permit a conditional offer to be made alongside a firm offer for another school.

Option 2b

The local authority handles applications for the school outside co-ordination.

Parents would fill in the school’s application form and submit this to the local authority along with a common application form expressing a preference for other schools, in case the free school doesn’t open in time. You would need to decide whether to use the national deadlines and offer days or to specify different dates.

Composite prospectus

Local authorities have a statutory duty to provide information about school choices in their local area and must publish a composite prospectus each year by 12 September. When a provisional opening date is agreed for a free school, we write to the relevant local authority to let them know in which year the school is expected to open. From that point on, the local authority should take steps to see that information about the free school is included in its prospectus and must include your school’s admissions policy once it is finalised.

The local authority is required to keep the composite prospectus under review as admission policies change – for example, as a result of adjudicator determinations on admissions or new schools opening. Once you have confirmed to us that your policy complies with the school admissions code, it should be determined as final and submitted to the local authority. The local authority is required by the school admissions code to provide information on schools opening during the year and to update its website to provide information on your school’s admission policy.

Your admission arrangements

Guidance on free school admissions is available to help you develop your first set of arrangements. Arrangements, including application forms, must be clear, fair and objective, and comply with the school admissions code.

Promoting integration between people from different ethnic, religious and socioeconomic backgrounds is a priority for the government. Where a mainstream school’s oversubscription criteria are based around proximity to the school, the school’s intake might not represent the diversity of the wider local area.

Appeals

Parents whose children have not been offered a place at your school have the right to appeal, and your admission arrangements must include information about this.

It is the responsibility of the academy trust to set up an independent appeals panel in accordance with the school admission appeals code but local authorities, as well as other bodies, will run appeals services and you may want to consider buying into one of these to run your appeals.

If you want to manage your school’s own appeals, you should be prepared to commit time, funds and resources to it. You’ll need to make sure that the appeals panel is completely independent of the school and the academy trust. Whether or not you contract out the service, it is the trust’s responsibility to make sure that panel members and the governance professional (clerk) are properly trained in accordance with the requirements of the school admission appeals code. Additional non-statutory advice on school admission appeals is available for admission authorities, governance professional (clerks), appeal panels and parents.

Consulting on your school’s admission arrangements

In the pre-opening period, you should include at least an outline of your proposed admission arrangements as part of your Section 10 consultation and take into account any responses you receive. Once the school’s funding agreement is signed and the arrangements are determined and published, you cannot make any further changes, other than as permitted by the school admissions code.

Once your school is open, in accordance with the school admissions code, you’ll need to consult on your admission arrangements if you propose to make any changes, and at least every 7 years even if you do not want to make any changes. You’ll have to carry out your consultation in the academic year before the new arrangements would take effect. This means there is nearly a 2-year lead-in period before you would be able to admit children according to any changed arrangements.

Special free schools

Recruitment and admission to special free schools is via an EHC plan drawn up by a local authority that names the school. The only exception to this is where the Secretary of State has specified in the funding agreement that the school can also admit a minority of pupils with the type of SEND in which the school specialises who do not have an EHC plan. See the SEND code of practice for details. Such innovative proposals will be approved only as an exception and if a strong case can be made.

It is important to remember that, as the admissions authority for your school, it is the academy trust’s responsibility to get things right. This includes:

• setting out the school’s age range, number of pupils with EHC plans provided for and type of SEND specialised in, as part of the consultation you’ll carry out under Section 10 of the Act
• complying with the mandatory requirement to admit all pupils with an EHC plan that names the school and to have regard to the SEND code of practice
• publishing the school’s SEND statement of provision on its website, we advise you to use the statement of provision template – see special free school admissions for additional guidance
• publishing on the school’s website any narrative that sets the scene in terms of the proposed free school’s target cohort or policies, including methods of teaching or curricular or specialist offer

Children with EHC plans

Local authorities have a statutory duty, where necessary, to identify, assess and arrange provision for children with SEND. Where a local authority has carried out a statutory assessment and decided to issue an EHC plan, it will issue a draft plan to parents. Parents can request for the local authority to name their preferred choice of school in their child’s EHC plan. The local authority must take into account parental requests and must consult with a school, if it is intending to name it in an EHC plan. However, the final decision on the school to be named rests with the local authority responsible for maintaining the plan.

A special free school must admit a child where the school is named in a child’s EHC plan, even if the child’s SEND is not a type of SEND for which the school is designated. A special school is organised to make educational provision for any pupils with SEND. They’re designated for specific type(s) of SEND, and the main designations of SEND are set out in the SEND code of practice. Once a school is open, approval from the Secretary of State would be required if it wished to change or extend its designation to other types of SEND. It should publish details of its provision and capacity online.

A school has a duty to comply with an EHC plan. If a school disagrees with being named on an EHC plan, it can appeal to the Secretary of State. It should only do so if attempts have already been made to resolve disagreements at the local level. Complaints can only be considered under limited circumstances: either if the local authority has acted unreasonably or has failed to carry out one of its important duties under the Education Act, including its SEND duties.

If parents disagree with a school being named in their child’s EHC plan, they have a right of appeal to the SEND first-tier tribunal. Decisions made by the tribunal are binding on all parties.

If a special free school is allowed within its funding agreement to admit children without an EHC plan, the process for admitting these pupils must be set out in an admissions policy that complies with the school admissions code. Your RG delivery officer will be able to provide more information on this.

Consulting on your school’s arrangements

In the pre-opening period, set out details of the size and type of the provision your school will offer and any proposed admission arrangements (if admitting children with SEND but without an EHC plan) within your Section 10 consultation. Once you have taken account of any responses to your consultation, published your final arrangements on your website and signed your funding agreement, you should not make any changes to the arrangements.

Once your school is open, in accordance with the school admissions code, you’ll need to consult on your admission arrangements for children with SEND but without an EHC plan if you propose to make any changes, and at least every 7 years even if you don’t want to make any changes. You’ll have to carry out your consultation in the academic year before the new arrangements would take effect. This means there is nearly a 2-year lead-in period before you would be able to admit children according to any changed arrangements.

If you wish to make any changes to the type of special needs the school specialises in or the size of the school, age range or similar, this will require a change to your school’s funding agreement, to be agreed with the Secretary of State once the school is open. Guidance on making significant changes to an academy is available.

Alternative provision (AP) free schools

AP free schools must be principally concerned with providing full-time or part-time education for children of compulsory school age who may not otherwise receive suitable education for any period because of illness, exclusion or another reason. This means that the majority of pupils (over 50%) must be of compulsory school age (between 5 and 16 years old). AP free schools may also choose to cater for some 16- to 19-year-olds, but they must number less than 50% of your students.

Children of compulsory school age can only be admitted to an AP free school by being referred by commissioners (local authorities or schools), using their existing referral powers or duties.

AP free schools have the freedom to adopt a policy whereby students or their parents can choose to apply for a post-16 place, but this is not compulsory. Applications to AP free schools for post-16 places should be managed through the same process as applications to 16 to 19 provision at mainstream schools. It is not compulsory for a student to attend a specific school or college post-16, so any referral system for students over compulsory school age would also require an application from the student to ascertain that they were willing to attend.

The school admissions code does not apply to referrals or post-16 admissions at an AP free school. AP free schools can adopt code-compliant post-16 arrangements if they wish, but the minimum requirement is that they follow guidelines on admissions to 16 to 19 free schools.

As an academy trust, you are responsible for making sure that the referral policy and any post-16 admissions policy comply with the funding agreement. That means they must be fair, transparent and objective; admit any pupils with statements of SEND or an EHC plan naming the school; and give highest priority to looked-after children and previously looked-after children.

Your referral or admission policy should include:

• your school’s referral process for children of compulsory school age, compliant with referral powers and duties - you should include a tie-break to decide which student should be admitted if there are more referrals than places
• your school’s referral or application process for post-16 provision, if applicable - you need to state whether:
  • you’ll only accept applications from post-16 students if they have also been referred by commissioners
  • post-16 students can apply independently of any referral
• a process for consulting on and finalising the new arrangements if you want to change your school’s admission or referral arrangements once the school has opened
• a process for managing referrals to the school, with systems in place to manage and track referrals from the opening date
• information to make sure that unsuccessful commissioners and others are aware they can submit complaints about the referral process or complaints about the post-16 admission arrangements to ESFA

AP free schools should be aware of the fair access protocol. This is the mechanism for making sure that children who are hard to place are allocated a school place quickly during the school year. The requirements in relation to AP are set out in the statutory guidance on alternative provision.

Referrals: commissioners’ responsibilities

Statutory guidance sets out the government’s expectations of local authorities and maintained schools that commission alternative provision and pupil referral units. The government expects those who are not legally required to have regard to the statutory guidance – for example, academies – to use it as a guide to good practice.

Local authorities are responsible for arranging suitable education for permanently excluded pupils and for pupils who, because of illness or other reasons, would not receive suitable education without such arrangements being made.

Governing bodies of schools are responsible for arranging suitable full-time education from the 6th day of a fixed-period exclusion. Schools may also direct pupils off-site for education to help improve their behaviour.

The referrals or admissions process

Statutory guidance sets out that there should be clear criteria for referring and admitting pupils, including those who are dual registered. Pupils should be dual registered from the beginning of the first day on which the school has commissioned the alternative provision. For the purpose of the school census, a pupil should be dual main registered at their school and dual subsidiary registered at the alternative provision.

As part of your school’s published referral policy, you’ll need to decide how you’ll effectively manage referrals and engagement with your commissioners throughout the academic year. If you also want to admit pupils, by application, to any post-16 provision, you’ll need also to adopt an admissions policy.

The referral policy and any admissions policy should be part of the same document. For your referral process, you’ll need to be clear and open about how it operates. It is important that you are clear about the type of cohort you wish to cater for, so that potential commissioners will understand the type of provision you offer. Your published referral/admissions policy should make it clear to commissioners how and when to make referrals. Your criteria should be fair and objective, so it is clear how decisions are made. This will also minimise the chance of potential challenges or complaints.

We strongly advise that schools use the AP referral template to draft their referral policy. A model commissioner’s referral form is also included.

Consulting on your referral and admission arrangements

In the pre-opening period, include your referral and, if relevant, admissions policy as part of your Section 10 consultation. Once you have taken account of any responses to your consultation, published your final policy on your website and signed your funding agreement, you should not make any changes to the arrangements during the rest of the school year.

If you admit students post-16 (through student application), your policy should be reviewed and published on an annual basis to take account of changing demographics in your area. We recommend that you consult local people on any changes and publish your policy every September for the following September’s admissions. For example, your policy for 2024 admissions should therefore be published in September 2023, or as early as possible if this is not achievable.

You should also keep your policy on referrals under regular review and respond to any demographic changes.

It is possible for people to submit complaints about your referral and admissions policy to DfE, which will make sure that the policy is fair, clear and objective, in accordance with the funding agreement.

16 to 19 free schools

As an academy trust, you are responsible for admissions to your free school. This means you are responsible for:

• making sure the free school’s admission arrangements are fair, objective and transparent
• managing applications to the institution – in most cases, you’ll need to manage these directly, although, in some areas, post-16 institutions co-operate to co-ordinate admissions
• organising an independent admission appeals process

As 16 to 19 free schools are not legally schools but educational institutions, your free school is not covered by the school admissions code. However, its admission arrangements do need to be fair, clear and objective. Parents and prospective students still need a clear understanding of:

• how and when places are offered
• whether there are minimum entry requirements
• whether there will be a test or an interview as part of the application process
• which criteria will be used to decide how applications will be prioritised

Arrangements should be as straightforward as possible and clear about how criteria are to be applied.

Unlike mainstream schools, there are no national co-ordinated deadlines for when applications to post-16 institutions need to be made. Institutions generally set their own deadlines based on how large or oversubscribed they’re and, therefore, how long they need to consider initial applications. Our strong advice is that you should aim to make provisional offers to students in the spring term, so that applicants are clear about any academic conditions you’ll place on their offer sufficiently in advance of sitting their exams in the summer.

Example timeline

1. Invite applications from the autumn term onwards, with an initial application deadline no later than early spring.
2. Sift applications and apply selection criteria during the spring term.
3. Make conditional or unconditional offers before Easter, so students are clear what requirements they will need to meet.
4. Confirm places once students have received their GCSE or A level results in August (or earlier if you are offering unconditional places or places based on predicted grades).

You’ll need to include your timeline in your admissions policy, making it clear to students and parents how and when to apply.

The admissions process

We strongly advise that you draft your admission policy using the template. Your criteria should be fair and objective, so it is clear how decisions will be made. This will also minimise the chance of potential challenges or complaints. There are some important elements that all admission arrangements should include:

• an admission number for the institution, or admission numbers for courses, for each year of entry into the institution – this number sets the minimum number of pupils the free school will admit each year
• clear oversubscription criteria
• details of how and when applications can be made
• an application form
• details of a waiting list
• details of your independent appeals process

Oversubscription criteria

If you have more applications than places, you’ll need to apply clear oversubscription criteria to help you allocate places fairly. As a 16 to 19 academy, you have a great deal of flexibility about how you admit students. You can select by criteria such as ability, qualifications or tests, but if you choose to do this, you must be clear about your intentions from the start and explain in your admissions policy the requirements necessary to be admitted.

You can set specific requirements for specific courses, and you can turn down applicants to whom you have offered places if they do not subsequently meet the academic requirements. Beware of setting your minimum criteria too high or making the application process too onerous for students, as you do not want to have empty places in September. If you have more qualified applicants than places, you can sift them by applying your published admissions criteria.

You are required to admit all students with an EHC plan naming the free school. Although you are not required to, we would encourage you to give first priority within your oversubscription criteria to looked-after children and previously looked-after children.

You then need to list the rest of your free school’s oversubscription criteria in order. You need to think carefully about these and make sure they strike the right balance, admitting the students who will thrive and benefit most from the provision you offer without being overly complex or burdensome, or inadvertently disadvantaging a prospective student.

Offering places

Once your application deadline has passed and you have applied the admission criteria, you can choose to make either conditional or unconditional offers. Before your funding agreement is signed, you should make only conditional offers, in case there is any delay in opening. You do not need to have signed your funding agreement to make conditional offers, but you should advise your prospective students that they may wish to have an ‘insurance’ place.

At the point DfE is ready to enter into a funding agreement with you, your RG delivery officer will want to know how many:

• formal applications have been made
• conditional offers have been made and how many accepted (from March onwards)

Information about expressions of interest will generally not suffice.

Finalising choices

Unlike a school with a sixth form, where students can move into year 12 in the same institution, you need to create opportunities to engage with students after you have offered them a place. It is beneficial to both you and them if you continue to get to know them and help them finalise their plans, such as which A levels or vocational subjects they want to study. This will help you plan timetables and teaching loads, and makes sure students have a strong start at your institution.

We suggest you host a ‘getting ready’ day for students, much like a secondary school would hold an induction for pupils moving from primary school.

It is also important to have opportunities to meet with students individually between the release of GCSE or A level results and the start of term, in case they or you think they might need to adjust their plans.

Waiting lists

You should draw up a clear, fair and transparent waiting list and be clear about how long you’ll keep it. Our advice is that you should keep a waiting list until the first day of the academic year – although many post-16 institutions choose to maintain it for a longer period. Students on the list should be ranked in line with your published oversubscription criteria.

Appeals

Students who have not been offered a place at your free school should have the right to appeal. Your admission arrangements must inform them about their right to appeal and the process, deadline and contact details for making an appeal.

Local authorities, as well as other organisations, will operate an appeals service for school admissions, and you may want to consider buying into that service to run your appeals process. In doing so, you need to make sure they understand that, as a 16 to 19 academy, you do not have to abide by the school admissions code or the school admissions appeals code.

If you want to manage your own appeals, you should be prepared to commit time, funds and resources to it. You’ll need to set up an appeals panel, which should be independent of the institution. It should comprise a governance professional (clerk), a DfE adviser and at least 2 other people. We strongly recommend you provide training for all panel members.

Administration and verification of information

In operating your admission arrangements, you can request proof that the information provided in the application form is valid. For example, you can ask for proof of address to confirm that a student lives where they say they do. However, you should recognise that many students won’t have access to the same types of proof of address as their parents. You must not ask for evidence that includes, for example, parents’ financial or marital status, or the first language of the parents and family.

Consulting on your arrangements

In the pre-opening period, include your 16 to 19 free school’s proposed admission arrangements as part of your Section 10 consultation. Once you have taken account of any responses to your consultation and published your final arrangements on your website, and we have signed your funding agreement, you should not make any changes to the arrangements until the application process is over for the year. It should be reviewed and published on an annual basis to take account of changing demographics in your area.

We recommend that you consult local people on any changes and publish your policy every September for the following September’s admissions. Your policy for 2024 admissions should therefore be published in September 2023, or as early as possible after that if this is not achievable.

It is possible for people to submit complaints about your policy to DfE, which will make sure that the policy is fair, clear and objective, in accordance with the funding agreement.

Religious character

If you would like particular beliefs to be reflected in the life of your school, and specifically in your curriculum, staffing and admissions policies, you need to seek a religious designation. This is a legal recognition that your school will have a religious character. A faith-designated free school has the following freedoms that will allow you to maintain and develop that religious character:

• apply up to 50% of pupil admissions by reference to faith when the school is oversubscribed
• appoint teachers by reference to faith
• deliver religious education (RE) and collective worship according to the tenets of the faith of the school

This is a separate application, and your school’s religious designation will not come into force until you have signed your funding agreement with the Secretary of State and the legal process for religious designation has been completed.

It is important to note that these freedoms are not available to free schools that wish to register as having a ‘faith ethos’ – a part of the independent school registrations process.

See table 8 in annex A for a checklist to help apply for a religious designation.

Applying for a religious designation

For your school to have a religious designation, you’ll have to satisfy the Secretary of State that the conduct of the school or the provision of education is, or will be, in accordance with the tenets of one or more religions or religious denominations, and that one or more of the following applies:

• some or all of the premises to be occupied by the school will be provided on trust in connection with:
  • the provision of education
  • the conduct of an educational institution in accordance with the tenets of one or more religions or religious denominations
• at least one academy trustee is a person appointed to represent the interests of one or more religions or religious denominations
• the governing instrument of the school provides that the school shall be conducted, or some or all of the education shall be provided, in accordance with the tenets of one or more religions or religious denominations

In advance of approving a religious designation application, the Secretary of State may consult the relevant religious body, or any other religious body. The Secretary of State will need to be assured that your school will be managed in accordance with the tenets of your faith.

To apply for religious designation, you need to complete the FSRDApp1 form and return it to your RG delivery officer for processing as soon as possible. The guidance and application form can be found via religious character designation: guide to applying.

Special and AP free schools cannot be designated as having a religious character, although they may have an ethos or worldview that is reflected within the vision and values of the school.

Faith-designated free schools with nursery provision are able to reflect their religious outlook within the life of the nursery – for example, by celebrating religious festivals or using stories based on religious texts. They’re not permitted to apply any faith criteria for admissions to nursery places, and the nursery must abide by the same requirements in the funding agreement and regulations as apply to the rest of the school.

Additional responsibilities for faith-designated free schools

The government is keen for all schools to support inclusivity and integration between communities. All schools must be inclusive, whatever their religious character or ethos. Academy trusts that are opening a faith-designated free school will be expected to provide evidence of their commitment to inclusivity and community cohesion and plans to support this, which will be tested rigorously throughout pre-opening. There are a number of ways you could demonstrate your commitment to inclusivity:

• having plans to develop a sustained and structured linking programme with a school of a different or no religious designation, to create meaningful relationships between young people of different faiths or no faith, including:
  • sharing teachers and resources
  • conducting joint lessons, assemblies or sporting activities
• having diversity on the academy trust’s board by including one or more members or academy trustees who are of another faith or no faith
• setting up a mixed-faith trust with schools of different faiths or no faith that will be used to expose pupils in your faith-designated school to peers from different religious and ethnic backgrounds

We expect faith-designated free schools to appeal to a wide range of parents and pupils. You therefore need to make sure that your school policies are inclusive, your school is welcoming to pupils of other faiths or no faith and it is likely to attract applications from all parts of the local community, not just those of your faith. This includes making sure that your school policies and curriculum would not deter pupils from other faiths or no faith from applying for a place, nor prevent them from playing a full part in the life of the school. Policies that might deter applicants from other faiths or no faith are a combination of the following:

• lessons taught in community languages
• large proportions of curriculum time devoted to faith-related studies
• restrictive dietary requirements
• any separation of pupils, including when they’re eating
• the mandatory wearing of symbols or clothing associated with your faith or world view

Parents have the right to withdraw their children from RE at any age and from collective worship until the age of 16. From the age of 16, the right to opt out of collective worship passes to the pupil.

Like all free schools, you must also adhere to the conditions set out in your funding agreement. You’ll also need to demonstrate a commitment to making sure that your curriculum and ethos will prepare pupils for life in modern Britain.

What a religious body does and how academy trusts can find one

Most faith schools will be formed by groups that look to a religious body or organisation for guidance on how their religious character should be expressed in the life of the school. Therefore, if you are designated with a religious character, in most cases you should have a ‘religious body’ set out within your funding agreement. This body will advise you on your admission arrangements. You must consult it during your public consultation before changing your admission arrangements (and before any public consultation, if you are a Church of England School). See paragraph 1.38 of the School Admissions Code .

This body will also set out how faith activities – such as attendance at a place of worship – must be expressed within your admission arrangements. Without a religious body to advise you on how faith activities must be laid out, you cannot lawfully include them in your admission arrangements. See paragraph 1.9(i) of the School Admissions Code .

The religious bodies for maintained schools in relation to admission arrangements are listed in schedules 3 and 4 of the School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) 2012. These have been amended by regulations 3 and 4 of the School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) (Amendment) Regulations 2022. The bodies named in Schedule 3 (as amended) are those that should normally be written into your funding agreement if your school is designated as being from one of those faiths.

If your faith is not covered by any of the bodies listed in the regulations – for example, you are intending to seek a designation of ‘Christian’ or ‘multi-faith’ – you’ll need to identify an alternative body or bodies and should seek advice from your RG delivery officer. You should also seek advice if your faith is listed within the regulations, but your intention is to name an alternative religious body.

You should be clear about the role you intend the religious body to play in the design and running of your school beyond the consultation role required by law and the admissions code.

Those proposer groups opening a free school designated with a Church of England religious character will also need to agree to the church supplemental agreement in addition to their funding agreement. This document provides more detail on the roles of the diocesan board, the trust and DfE and how they will work together on issues relating to land, intervention, and support and termination.

Separately, in relation to the inspection of your denominational education or collective worship, the faith bodies that provide inspection services are:

• Church of England or Roman Catholic: the appropriate diocesan authority
• Jewish: the Jewish Studies Education Inspection Service
• Methodist: the education secretary to the Methodist Church
• Muslim: the Association of Muslim Schools UK
• Sikh: the Network of Sikh Organisations
• Seventh-day Adventist: the education department of the British Union Conference of the Seventh-day Adventist Church

These are set out within regulation 9 of the Education (School Inspection) (England) Regulations 2005 and are not always the same bodies set out in the admissions regulations.

It is not compulsory for you to use these organisations to carry out the inspection, but you are required to consult with the appropriate body, if one is listed, before you opt to organise it independently.

There is a protocol that you should follow to claim grant funding towards the cost of inspection. You’ll need to draw up a framework and provide details and assurances about the independence of the inspectors you are using and submit it and the inspection report to DfE before any grant can be considered. Seek advice from your RG delivery officer.

Recruiting teachers before the school obtains religious designation

Being a faith-designated free school gives you limited exemptions from the Equality Act 2010 (see equality duties). This includes being able to give preference to recruiting teachers of the faith.

To be designated officially, you’ll need to have signed a funding agreement with the Secretary of State and have successfully applied for designation. If you wish to appoint teachers before you are designated, you’ll need to be able to demonstrate that adherence to a particular faith is a genuine occupational requirement, such as for the principal designate or an RE teacher.

Where this is the case, you may be able to advertise, hold interviews and employ teaching staff prior to the designation of the free school. However, wherever possible, you should refrain from entering into an employment contract until you have obtained the religious designation and signed a funding agreement.

Free schools that register a faith ethos

If you want your school to reflect a distinct ethos aligned with a particular religion, you can register that your school has a religious ethos. The ethos could then be reflected within the vision for the school, the values the school represents, and the importance placed on particular beliefs.

Unlike schools that are faith-designated, schools registered with a religious ethos are not entitled to any of the freedoms of faith-designated schools, except in the appointment of senior leaders, where the faith of candidates can be taken into account.

As with all other schools, your school will be expected to be inclusive in its outlook and practices, and be likely to attract applications from pupils of other faiths and no faith. Your RG delivery officer will expect to see evidence of the actions you are taking to encourage applications from the wider local community.

Throughout the pre-opening phase, we expect groups who are proposing a school that will have a religious ethos to be able to:

• explain clearly how faith will (or will not) manifest itself in, and influence, the curriculum, policies and look and feel of the proposed school
• demonstrate how you’ll make this clear to parents and pupils

Schools with a faith ethos, in common with all schools without a religious designation, can apply to be exempted from the requirement to provide broadly Christian collective worship. This may be where the belief of the majority of its pupils or the local community is such that another faith would be more appropriate.

Equality duties

Every child in the country should have the opportunity to get the very best education, giving them knowledge and skills that will set them up for life. The free schools programme supports equality of opportunity through opening high-quality new schools in the areas where they’re most needed.

The Equality Act 2010 provides a single, consolidated source of discrimination law. It makes it unlawful for your academy trust to discriminate against, harass or victimise a pupil or potential pupil based on protected characteristics:

• in relation to admissions

• in the way it provides education for pupils

• in the way it provides pupils access to any benefit, facility or service

• by excluding a pupil or subjecting them to any other detriment

Section 149 of the Equality Act 2010 requires all public authorities, when exercising their functions and making decisions, to have due regard to the 3 limbs of the Public Sector Equality Duty (PSED). These are to:

• eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under that Act

• advance equality of opportunity between those who share a relevant protected characteristic and those who do not share it

• foster good relations between those who share a relevant protected characteristic and those who do not share it

Meeting your obligations under the Equality Act 2010 is a continuing obligation on your academy trust. You must meet your obligations throughout the pre-opening phase and once the school is open.

The Secretary of State has a statutory duty to consider the potential equality impact of their decision before deciding whether to enter into a funding agreement with you.

Summary of the main tasks

Throughout the pre-opening phase, you must consider how the decisions you make will affect people due to their protected characteristics. The protected characteristics are:

• age

• disability

• gender reassignment

• pregnancy and maternity

• race

• religion or belief

• sex

• sexual orientation

You also need to note that discrimination on the grounds of marriage and civil partnership is unlawful.

A person’s age is a protected characteristic in relation to employment. Age as a protected characteristic does not apply to pupils in schools.

See table 10 in annex A for an equalities duties checklist.

How DfE will work with you

When making all your important decisions in the pre-opening phase, you must make sure that you comply with the PSED. Your RG delivery officer will be looking for evidence that it is being considered throughout this phase.

Some examples of the information your RG delivery officer will need are:

• details of your marketing plan, to show how you’ll engage with local communities to meet your duties to promote community cohesion

• your staff recruitment policy, to show how you’ll make sure you treat all candidates in a fair and transparent way during the recruitment process

• your SEND policy, to show what provision will be available for pupils at the school and the other specialist provision that will be available

At meetings, you should aim to keep your RG delivery officer informed about how your equality duties are being met.

Your RG delivery officer will keep a record of all pertinent information. This will help the Secretary of State to assess the impact on people with reference to protected characteristics.

School food

All government-funded schools, including academies and free schools, have a duty to provide free school meals to pupils of all ages who meet the eligibility criteria. This is outlined in The Requirements for School Food Standards Regulations 2014.

Since September 2014, state-funded schools in England must provide free school meals to every infant pupil who cannot claim benefits-related free school meals.

Schools should promote healthy eating and provide healthy and nutritious food and drinks. Guidance on school food standards is available, including the standards practical guide.

Staffing, education plans and policies

During the pre-opening phase, you’ll need to turn the detailed staffing and education plans in your application into reality to make sure that everything is in place to open successfully – from recruiting high-quality staff to having high-quality education policies and schemes of work in place. You’ll need to make sure there is joint planning of finance, curriculum and staffing throughout the process, to deliver an affordable curriculum that meets pupils’ needs.

You’ll need to have some policies in place early for consultation and pupil recruitment. Others will be needed ahead of the readiness-to-open meeting and the Ofsted pre-registration inspection. You should consider what you’ll need ahead of your first full inspection, which will normally take place during the third year after opening.

You’ll also need to consider how you’ll make sure the workload is manageable and sustainable for all staff as the school expands to aid recruitment and retention, ensuring that the demands on staff are proportionate and reflect the most efficient and effective practice.

You should be conscious of planning for the wellbeing of all staff, including the senior leader, and the need to implement flexible working practices in a way that promotes a good work-life balance and supports teachers and leaders.

Flexible working in schools can help to recruit, retain and motivate teachers, improve staff wellbeing, and promote equality of opportunity and diversity in the workforce. Read more about the benefits flexible working can bring.

Summary

DfE will procure a external professional contractor (external expert) to review your progress and provide us with confidential advice to help your RG delivery officer best support you. External experts are highly experienced education professionals who have verified specialist expertise relevant to the specific project requirements.

Appointing a high-quality principal designate is probably the most important thing you’ll do as an academy trust during the pre-opening phase. The recruitment process should not take place before the provisional opening date has been confirmed. Getting the right person is of critical importance to the success of your school. The principal designate will be involved in appointing other staff and writing the detailed education brief, education plans and policies, and the schemes of work you’ll need ahead of opening. It may take more than one recruitment round before a suitable candidate is appointed, and this presents a risk to the successful opening of your school. If you are experiencing difficulties recruiting a principal designate, you must escalate this to your RG delivery officer.

All serving headteachers and teaching staff will be bound by contractual resignation dates, and you’ll need to factor this into your recruitment plans. Appointments made before a funding agreement is in place should be conditional on the trust entering into the funding agreement and the school opening.

The recruitment and retention strategy explains how to create the right climate to establish a supportive school culture and make sure you have planned for a manageable workload for all staff.

In creating a culture that promotes flexible working, you have the potential to create new and innovative opportunities for addressing teacher supply, and to promote greater diversity in the workplace. To support you to implement effective flexible working practices, a collection of flexible working resources for teachers and schools is available.

As an academy trust, you have statutory duties in terms of the policies that need to be in place before opening. See statutory policies for schools for more information about these duties. Education plans and policies are not routinely signed off by external experts, but they will always review the pupil assessment, recording and reporting policy and the safeguarding policy.

It is important that, as an academy trust, you fully understand your responsibilities for safeguarding the children in your care. You should consult:

• keeping children safe in education
• working together to safeguard children
• what to do if you’re worried a child is being abused: advice for practitioners

Your RG delivery officer will ask you to report on the recruitment of staff in the context of pupil recruitment and financial plans, and on the development of your education plans and policies, at specific points during the pre-opening phase, including ahead of the Ofsted pre-registration inspection and at your readiness-to-open meeting.

See table 11 in annex A for a staffing, education plans and policies checklist.

Risks

Inspected schools that have not had a change in principal designate are more likely to receive a ‘good’ or better Ofsted judgement than those that have, so it is vital that you find the right person for the job. It may take a few attempts to recruit a suitable principal designate, so it is sensible to consider very carefully when to begin the recruitment process as serving headteachers and teaching staff are bound by contractual resignation dates.

Where a principal designate candidate has no leadership experience or is a direct appointment, a benchmarking exercise should be carried out by an external expert, who will advise DfE on the suitability of the candidate for the role. You should also think about the support and mentoring programme you’ll provide to support them.

Although many free schools are keen to appoint newly qualified teachers (NQTs), it will be important – particularly for subject specialists in secondary schools – to consider where subject-specific support might come from if there are no other specialists in the school in the first and even second year of opening. There might be a similar need for caution when recruiting senior or middle leaders. Having little relevant leadership experience can significantly limit leadership capacity at a time when it is needed to establish and implement school improvement systems.

Once you have your principal designate in post, it is important to get your wider tracking and assessment systems in place. Failure to do this may affect your ability to obtain a good Ofsted judgement.

Essential information you’ll need to provide to DfE

You’ll need to provide DfE with details of your:

• proposed staffing structure
• pupil assessment, recording and reporting policy
• safeguarding policy
• the education plans or policies requested by your RG delivery officer or external expert

Appointing a principal designate

Principal designate appointments can be made either through open national recruitment or as a direct appointment, without advertising. Given the importance of the appointment, we’ll procure an external expert to support in the recruitment process. You must notify your RG delivery officer before going against advice from the external expert.

The external expert will provide:

• advice to the RG delivery officer on the job specification role, skills or specialisms
• support as a panel member, reviewing and sifting applications and providing feedback to enable you to make the decision on which candidates to be interviewed
• support as a panel member, providing feedback after the sifts and interviews, ensuring the recruitment approach is fair and transparent

In exceptional circumstances, such as where an experienced academy trust is behind the project, we may agree that an external expert does not need to be involved. Your RG delivery officer will discuss this with you.

Direct appointments can be made, where appropriate, but as an academy trust, you’ll need to be able to demonstrate that the appointment was transparent and fair.

Once you have identified a suitable candidate, we may suggest they undergo a benchmarking exercise. This will involve the candidate being interviewed by an external expert and having the candidates performance assessed against relevant leadership standards. The results can then be used to inform the design of a development programme that you can then take forward with the principal designate.

Additionally, you may choose to spend the money you would have spent on advertising the post to put your preferred direct appointment candidate through an assessment to make an informed judgement about their suitability. Most large educational recruitment firms and universities run assessments for school leaders.

The principal designate of a free school forming an academy trust with only one school will also be the accounting officer. In academy trusts with more than one school, the accounting officer will be the CEO or senior executive leader (SEL) of the trust. The role of the accounting officer includes a personal responsibility to both ESFA’s accounting officer and Parliament for the financial resources under the free school’s control. Further information about the role of the accounting officer is in the section on governance.

You’ll need to send a copy of the principal designate’s contract to your RG delivery officer when an appointment has been made. This is to make sure we’re aware of any costs that could be incurred as a result of the principal designate’s salary being underwritten.

Serving headteachers and teaching staff are bound by contractual resignation dates. Appointments made before a funding agreement is in place should be conditional on you entering into the funding agreement and the school opening. You must escalate to your RG delivery officer if you are experiencing difficulties appointing high-quality teaching staff.

We recognise that you may be asked by a potential principal designate for additional security, if a funding agreement has yet to be signed and they’re being asked to hand in their resignation and accept the job at the free school. In such cases, we’ll underwrite the salary costs, plus on-costs, should the free school not open, or if its opening is deferred by a year.

We’ll only underwrite the principal designate salary once the provisional opening date has been confirmed and we have started to release PDG beyond the initial allocation.

We’ll pay the principal designate’s salary plus on-costs, including employer pension contributions and National Insurance, for no more than 2 academic terms. This begins from, and includes the remainder of, the term in which the decision to cancel or defer the project is made, and the subsequent term. In cases where one clear term’s notice can be given, we’ll underwrite only one term.

We’ll agree a cap on the underwriting on a case-by-case basis. If required, we may pay the salary directly to the principal designate.

The principal designate’s employment contract with you must state that, if, after the free school has been cancelled or deferred, the principal designate becomes underemployed, they may be required to take on additional work for DfE while their salary is being underwritten.

The principal designate’s employment contract must also state that, should the free school not go ahead, while still being paid by DfE, they must take all reasonable steps to seek alternative employment. In the event that they do take up any such alternative employment, we’ll deduct the value of that remuneration from payments to them.

In exceptional circumstances, we may agree, on a case-by-case basis, to also underwrite the salary costs plus on-costs for key essential teaching staff. In considering such cases, we’ll look at the progress you are making on the project. If agreed, underwriting for other key essential teaching staff will be subject to the same conditions set out above. If you are intending to underwrite the salary of your principal designate or essential teaching staff, you must speak to your RG delivery officer at the earliest opportunity.

Finalising staffing structure and recruitment

You’ll need to finalise your staffing structure for all staff, and recruit those needed in your first year. Alongside your principal designate, you’ll need to consider the other important posts you need to budget for, including senior leaders. You might find it useful to consider:

• the top-10 planning checks for governors
• integrated curriculum and financial planning guidance
• resources for reducing teaching workload

As well as teaching posts, it is important to think carefully about who will take on the finance role, to develop the more detailed budget for the pre-opening phase and year one, and to regularly consider staffing plans against financial plans and pupils recruited. Only by doing so will you be able to demonstrate that your proposed staffing structure is affordable, both pre- and post-opening. Additionally, it is important to remember that your staffing structure and recruitment plans should not be confirmed until you have a firm idea of how many pupils you have recruited.

Most free schools advertise for staff in both the national and local press. Some find holding their own recruitment fairs a good way of attracting staff. Others have used agencies or organisations with talent pools, but these will often charge schools for this service. Many of the major education recruitment agencies have access to pools of staff. When considering options, bear in mind the principle of effective school resource management (SRM).

Teaching vacancies is a free national service for searching and listing teaching roles. It is available to publicly funded schools in England. We developed the service to address school leaders’ concerns about the level of expenditure on teacher recruitment advertising. By using the service, schools can save money.

Access to the service is available for individual free schools once they have been given access to DfE Sign-in. Free schools that are part of a multi-academy trust can access it earlier to recruit staff for free through multi-academy trust level access. If your trust does not have access, further information can be found at how to request organisation access.

Schools will need to make sure all employment laws are met, and applicants have equality of opportunity throughout the selection process. We trust schools to use their judgment in implementing this.

The supply teachers and agency workers framework supports schools to reduce costs when recruiting supply teachers and other agency workers. This deal provides easy access to supply teacher agencies and shows mark-up in a transparent way. As part of the deal, agencies cannot apply fees for making temporary staff permanent after 12 weeks, if given 4 weeks’ notice, and administration time is reduced, as rigorous background checks must have been conducted on all staff in line with our statutory guidance on keeping children safe in education.

All serving headteachers and teaching staff will be bound by contractual resignation dates, and you’ll need to factor this into your recruitment plans. For example, a serving headteacher will have to have accepted a post and resigned by the end of September for a January start, the end of January to take up an appointment in May, and the end of April for a September start. As it may take a few attempts to recruit a suitable principal designate, it is sensible to consider very carefully when to begin the recruitment process, factoring in that you’ll first need confirmation of your provisional opening date.

Free schools’ freedoms for appointing staff

As the employer, you are responsible for appointing staff. If you are working with an education provider, you may pass the responsibility on to them, but you may still want to be involved in the recruitment process, as you’ll be the legal employer of all staff. As academies, free schools have some freedoms in appointing staff that other schools do not:

• you are not bound by national pay and conditions and can set your own – for comparative purposes, national pay scales are set out in school teachers’ pay and conditions
• you are not required to employ staff with qualified teacher status (QTS), except for the SEND coordinator (SENCO) and the designated lead for children in care – this freedom does not apply to special free schools
• your principal designate is not required to hold the National Professional Qualification for Headship (NPQH)

If your free school includes nursery provision, you’ll need to make sure your staff:child ratio meets the minimum requirements outlined in the early years foundation stage framework (EYFS). Exact ratios depend on the age of the child, the level of qualification of the staff and the type of setting. Your RG delivery officer and external expert will need to satisfy themselves that your planned staffing numbers meet these requirements.

Free schools’ statutory responsibilities

There are some statutory requirements on free schools about staffing, including:

• the SENCO and designated lead for children in care must hold QTS
• as an employer, you have a statutory duty to enrol all your staff into either the Teachers’ Pension Scheme (TPS) or the Local Government Pension Scheme (LGPS), depending on whether their role is teaching or support – pension contributions must start with employment, so you should make sure that provisions are in place for staff taking up their post during the pre-opening phase
• with regard to the TPS, you must comply with TPS regulations, including making sure those who are eligible are enrolled and comply with the requirements of the TPS administrator, Teachers’ Pensions (TP), for example, to provide data, information, contact details and timely pension contributions – you should contact TP as early as possible for help and guidance on these issues
• if your school is to be a designated faith school and you wish to recruit teaching staff on the basis of faith, you’ll need to seek designation as a school with a religious character

Transfer of Undertakings (Protection of Employment) (TUPE)

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (amended 2013) (TUPE) protects employees by providing for their automatic transfer by operation of law under their existing terms and conditions when their work activities transfer from one employer to another. It applies only to employees – it does not apply to volunteers or agency workers, other than in respect of information and consulting obligations.

We would not usually expect TUPE to apply to a free school if it is not replacing an existing school. Most free schools are new and additional schools. The only exception to this basic position is where existing provision (such as an existing AP or special school) converts to become a free school.

The TUPE regulations place a statutory obligation on the employer to inform and consult prior to a transfer taking place. The employer will need to inform their employees’ representatives (that is, the recognised union or, if there is not one, elected representatives) of certain matters in writing. These matters are set out in regulation 13(2) of TUPE and include the following:

• the fact that the transfer is to take place
• the date of the transfer and the reasons for it
• the legal, economic and social implications of the transfer for any affected employees, and any measures the employer envisages it will take in connection with the transfer, in relation to any affected employees

There is no set period for the information and consultation process, but it must be long enough before a transfer to enable the employer of any affected employees to consult the appropriate representatives. You should aim to provide the information and start consulting as early in the process as possible. As a rough guide, we suggest this should be not less than 30 days before the transfer, but this is for the academy trust to determine.

If you know that staff will need to transfer, you’ll want to have information from the outgoing employer about the employees and any liabilities you may be taking on. The outgoing employer (the ‘transferor’) is legally obliged to notify you (the ‘transferee’) of the employee liability information of any person employed who would be in scope to transfer. This includes:

• the identity and age of the employee
• the particulars of employment for the employee
• any relevant information such as disciplinary procedures taken against the employee
• information as to any collective agreements that will have effect after the transfer that are relevant to the transferring employee
• that the transferor has reasonable grounds to believe that an employee may bring against the transferee, arising out of the employee’s employment with the transferor
• information as to any collective agreements that will have effect after the transfer that are relevant to the transferring employee

Even staff who are in the process of being disciplined will transfer, if in scope, and the transferee will then continue the disciplinary process to its conclusion. Staff can object to the transfer if it would involve a substantial change in working conditions to their material detriment. Such an employee may treat the contract of employment as having been terminated and shall be treated for any purpose as having been dismissed by the transferor. The basic assumption is that they’re expected, if they’re in scope, to transfer to the new organisation. They do so with their continuity of service and their terms and conditions protected. Staff can agree with their employer a variation of the contract under certain conditions.

Some matters do not transfer, such as criminal liabilities and terms in relation to pensions. Again, specific legal advice may be necessary. Determining the application of TUPE is complex because a number of factors need to be considered. Each project is different and dealt with on a case-by-case basis. Academy trusts should always consult their legal advisers regarding any potential TUPE issues.

Developing an education brief

It is good practice to put all strategies and statements together in one document, called an education brief, which provides detail of how your school will operate. This can be distributed to staff and governors before opening, so everyone in the organisation understands the vision for the new school, the way the school will operate, the educational programme that will be delivered, the goals the school wishes to achieve, and its ambitions for the future.

It is important to be clear about what the essential elements that constitute a good brief are, how they may be constructed, the audience or audiences it will be for, and the purpose it has. It is also important to state how it may be put into practice and owned by the entire school, including the trust, governing board, the senior leadership team, staff and pupils and their parents. Details of what the education brief should contain are provided in annex E.

A well-developed education brief will do the following:

• inform your pre-opening phase planning and timescales
• take you through your Ofsted pre-registration inspection successfully
• help you choose the right staff and governors, and show how you’ll retain them, with particular regard to developing a manageable and sustainable workload as the school expands – refer to the workload reduction resources
• help you create a whole-school approach to mental health and wellbeing, and integrate the staff wellbeing policy in the school’s culture
• make sure that you are effective, safe and secure, and are achieving from the first day of opening
• be accessible and written in a way that you feel confident in sharing it with a wide range of audiences, internally and externally
• be focused on pupil outcomes from the start
• prepare you for your first Ofsted Section 5 inspection and help you achieve a good or outstanding judgement

The education brief also provides valuable evidence and reassurance to your RG delivery officer that you are offering a high-quality and inclusive educational offer, and that the school is on track to be educationally viable. This will inform their judgement to recommend the Secretary of State enters a funding agreement.

See annex E for more guidance on what an education brief should contain.

Developing education policies

You have statutory duties in terms of the policies that need to be in place before opening. Statutory policies for schools include more information about these duties. This includes details of the policies your school must have and how frequently they must be reviewed.

Policies may fulfil one or more of 4 requirements:

• a statutory requirement of education law or other legislation impacting on schools
• required prior to the funding agreement and are also a statutory requirement
• required for the Ofsted pre-registration inspection
• related to teaching and learning, and may be requested during an Ofsted inspection post-opening

Policies must be in place by their respective deadlines.

You’ll be required to submit some policies before your Ofsted pre-registration inspection and an inspector may ask to see others on the day. There will be other detailed plans and policies you’ll need to have in place for your first Ofsted inspection (normally in the third year after opening). Annex A sets out what needs to be done as a minimum, and by when, in the run-up to opening.

Closing the attainment gap for disadvantaged pupils is a priority for DfE. Your education plans and policies should reflect the local context in which your school will operate and be designed to improve outcomes and enhance the life chances of children in the local community.

When planning your curriculum, you should make sure it is aligned with the needs of children in the local area in which your school will operate, including how you’ll address the specific forms of disadvantage affecting pupils. For example, if your school will be situated in an area where a high proportion of pupils speak English as an additional language, you should make sure your approach towards literacy reflects this. You should also consider how your approach to teaching and learning will ensure the curriculum is delivered in a robust and effective manner and meet the needs of your expected intake.

We’re committed to maximising the number of children and young people who are regularly attending school. Regular attendance is vital for a pupil’s education, wellbeing and development. When developing your school attendance policy, you should refer to guidance on working together to improve school attendance. You should consider how you’ll develop a school culture that promotes the benefits of excellent attendance.

When planning assessment monitoring and tracking processes, you should pay attention to the advice for schools and governing boards in the making data work report to make sure that excessive data burdens are avoided.

Many free schools and academies have also found the overarching structure of the education brief (available in annex E) helpful, as this brings together all of the school’s strategic and detailed education plans and policies.

Exemplar education plans and policies are widely available. You can find them on your local authority’s website or acquire them from your project management company, if you are using one. You should tailor them to take account of the vision and curriculum plans for your free school.

Non-faith free schools, like other non-faith academies and schools, may apply for an exemption (called ‘a determination’) from providing a ‘broadly Christian’ daily act of collective worship. This can be replaced with an alternative daily act of collective worship that better reflects the faith background or backgrounds of the academy’s pupils. The determination lasts for 5 years. If you wish to apply for this status, your RG delivery officer will provide you with the relevant application pack.

Academies (including free schools) are required by law to publish specific information on their website. Guidance as to what must be included can be viewed at what academies and free schools must publish online. You must also make sure that you have the following documents in place prior to opening.

A scheme of work

This should set out details of the programme of learning and must be written for each subject or programme of study. These are usually prepared by the subject head of department, or the subject or phase co-ordinator in a primary setting.

A school development plan for the opening year

This is a strategic document, typically constructed by the principal designate and senior team, which sets out the main objectives the school wishes to achieve within its first years. This includes success indicators, actions, staff responsible, timelines and costings for the opening and subsequent years.

You may wish to consider including an annual survey of workload and wellbeing into your plans to make sure you are able to fulfil your commitment to a manageable and sustainable work-life balance for staff. An example survey is available to download as part of the workload reduction toolkit. What works for wellbeing offers examples on how to measure wellbeing in schools.

Promoting integration and community cohesion

The government is committed to building strong integrated communities in which people, whatever their background, live, work, learn and socialise together, based on shared rights, responsibilities and opportunities. Schools have a duty to promote community cohesion and integration, with a view to making sure that all children and young people are prepared to participate fully in life in modern Britain.

There are a number of practical activities you could undertake in your school to promote this and support pupils to mix with those from different backgrounds, equipping them with the skills, knowledge and confidence to contribute to the local community as active citizens. Initiatives such as sport days, arts competitions and music events bring together pupils from across the school, for example. You may wish to consider the further suggestions that follow.

Establishing sustained and structured linking arrangements with another school

Linking arrangements with another school can help promote sustained social mixing and create meaningful relationships between pupils from different backgrounds, fostering more positive attitudes, building understanding of different communities and cultures, and breaking down barriers to greater integration.

You may find it useful to engage with the Linking Network, which can provide support and training to help you establish a meaningful and structured linking programme with a suitable school. The Connecting Classrooms programme provides opportunities to partner with schools in different countries.

Promoting British values

Organising programmes, activities or trips aimed at promoting the fundamental British values of democracy, the rule of law, individual liberty and mutual respect and tolerance of those with different faiths and beliefs will help pupils to value difference; challenge prejudice, discrimination, stereotyping and intolerance of others; and understand the diversity of both the local community and wider society.

This can include activities in the classroom to teach these values as part of a broad and balanced curriculum, including through the teaching of spiritual, moral, social and cultural (SMSC) education, through subjects such as:

• RE
• citizenship
• personal, social, health and economic education (PSHE)
• relationship and sex education (RSE)

Youth politics and civic engagement

This can help to get young people thinking about the role they could play as active citizens in modern Britain. This should be linked to plans for lessons on and the ethos around democracy, elections and political systems. Initiatives could include a youth parliament, a school council and mock elections.

Active citizenship activities, such as volunteering opportunities in the local community, National Citizen Service or Youth Ambassador schemes build links between pupils and the local community.

Career programmes and policies

These could focus on improving links between pupils and local employers, and on encouraging apprenticeships. Large employers often have schemes targeted specifically at broadening access from disadvantaged and more diverse groups, which you may wish to explore.

Different areas will face different barriers to and opportunities for promoting integration and community cohesion. You should consider the appropriateness of your approach to promoting integration and community cohesion through your education plans and policies based on the characteristics of the local area in which your school will be based.

Measuring pupil performance

To demonstrate that your pupils are making progress, you’ll need to establish a baseline of pupils’ current levels of attainment on entry to your school. As such, you’ll need to develop a system for baselining before your school opens, otherwise you’ll not be able to demonstrate that progress. You’ll also need to implement a system of assessment that enables you to measure pupils’ performance, and a strategy for improving this.

Once your school opens, it is important that you review your success measures and expectations regularly, to improve performance. This could include benchmarking your assessment data with other schools’. As with your system for baselining and assessment, you should make sure you have developed a robust plan for reviewing performance before your school opens.

When designing your plans for measuring pupil progress, you should make sure they encompass how you’ll approach the following requirements:

• identifying the learning needs of your disadvantaged pupils and using the information to develop approaches for tackling the individual issues faced
• using appropriate and proportionate data to inform teaching and drive progression and attainment for all pupils – you should refer to the recommendations of making data work to support you in this
• monitoring and evaluating whether your approaches for disadvantaged pupils are working
• focusing on measuring and improving the quality of teaching in the classroom
• involving parents and reporting their child’s progress to them

Safeguarding

Schools and their staff form part of the wider safeguarding system for children. Safeguarding and promoting the welfare of children is everyone’s responsibility. School staff are particularly important in this, as they’re able to identify concerns early and provide help for children to prevent those concerns escalating.

It is vitally important that, as an academy trust, you fully understand your responsibilities for safeguarding the children in your care. You should consult:

• keeping children safe in education
• working together to safeguard children
• what to do if you’re worried a child is being abused: advice for practitioners

All governing bodies must have regard to this guidance, which means they should comply with it unless there is good reason not to. When the school opens, we would expect it to be meeting the requirements as set out in keeping children safe in education.

Every school must have a single central record (SCR) – for example, in a spreadsheet – alongside its documentation in personnel files. This should record in one place specific information on every adult employed by the trust or coming into regular contact with children on a voluntary basis. This is a statutory requirement. A senior administrator or other gatekeeper should maintain the SCR. The SCR must include for each adult employee, governor or volunteer whether the following checks have been carried out or a certificate was obtained, and the date on which each check was completed or the certificate was obtained:

• an identity check
• a barred list check
• an enhanced DBS check or certificate
• a prohibition from teaching check
• a further check on people living and working outside the UK
• a check of professional qualifications
• a check to establish the person’s right to work in the UK

You can find more information about what Ofsted will expect to see in place when you are inspected in their guidance inspecting safeguarding in early years, education and skills. This includes specific references to the SCR. There are serious implications if a school fails to provide a complete and up-to-date SCR when requested. The school can be closed immediately if the SCR is not produced, and staff can be sent home if it is incomplete.

See annex F for a safeguarding checklist.

External experts

We contract external experts to provide expert educational advice and reassurance to the department that your project is progressing well and on course to open a good school. The external expert will provide us with confidential advice to inform our decision on how to best support your trust.

You’ll need to have your own educational expertise in place to support you as an academy trust. As a minimum, the external expert will usually provide us with advice by:

• being involved in the process of appointing the principal designate
• advising us on the quality of the governance plan
• advising us on the build-up of the senior staffing structure
• advising us on the quality of the education brief (see annex E) and education policies – in particular, safeguarding and assessment
• attend and contribute to the readiness-to-open meeting

There is a differentiated approach to DfE’s support across free school projects. We contract the external expert to provide us with advice on a needs basis. We’ll consider the experience within your group and the complexity of your vision for the school, when we decide the level of external expert advice needed. For example, if your educational expertise is limited, or the group has not set up a new school before, DfE may contract additional external expert advice.

The level of external expert support may also change during the pre-opening period. For example, if a project has significant difficulty recruiting a principal designate, the level of support may increase.

After opening, an external expert will be contracted to provide us with confidential professional advice to inform decisions to support your school to deliver a high standard of education to your pupils. An external expert may be contracted to undertake first, fourth or sixth-term visits to your school, advising us on your progress until your first Ofsted inspection.

T-Levels

If your free school includes 16 to 19 provision, you might want to consider offering T Levels. T Levels are 2-year level 3 classroom-based technical study programmes. They sit alongside A Levels and apprenticeships within a reformed skills training system. They support entry to skilled employment in technical occupations and progression to higher education options.

By 2024, a total of 23 T Levels will be available, covering 11 industries.

Funding agreement

The funding agreement is the legally binding contract between the academy trust and the Secretary of State, which contains the terms and conditions on which a free school is funded.

Entering into a funding agreement is an important decision for both parties, so requires careful consideration. We’ll need to be sure your trust is ready to enter into the agreement and is likely to establish and maintain a popular and successful school.

The funding agreement sets out what the academy trust needs to do. This includes, for example, a requirement to provide school lunches and free school lunches in accordance with the relevant provisions of the Education Act 1996. The trust must meet these and other requirements to receive funding. The funding agreement also sets out the circumstances in which an agreement can be terminated.

The Secretary of State will consider signing a funding agreement only if you are able to develop your plans to the required standard during the pre-opening phase. For mainstream primary, secondary and all-through schools, the ideal is to enter into a funding agreement at least one month before the relevant national offer day in the year in which the school is due to open, to give parents receiving admission offers the confidence the school will open that year.

The Secretary of State will not enter into a funding agreement until they’re confident, on the basis of advice from the relevant regional director, that the school will be:

• good, viable, sustainable and successful
• able to open on its proposed date
• sufficiently secure about its permanent site
• able to meet any conditions set during the pre-opening phase or following assessment

The Secretary of State can cancel or defer a project at any point during the pre-opening phase, even after your funding agreement has been signed, if:

• your anticipated pupil numbers are not at a previously agreed level
• they consider the school would provide an unacceptably low standard of education

The Secretary of State does not enter into a funding agreement in respect of a nursery that is part of a free school, because nurseries receive their revenue funding from the local authority or fees charged to parents for provision above the ‘free’ entitlement. However, provisions about the use of the land for the nursery may need to be included in the funding agreement. Further information on nursery revenue funding arrangements is included in the section on funding for free school nurseries.

See table 12 in annex A for a funding agreement checklist. It sets out the main tasks you’ll need to complete to begin the process of agreeing the funding agreement for your school.

Why DfE uses model funding agreements

We produce model funding agreements for all types of academies, including free schools. There are different models available to reflect the requirements of different types of free school – see academy and free school funding arrangements. Using model funding agreements helps us make sure that there is consistency across free schools.

The terms of the model funding agreement have been developed since the beginning of the free schools programme. The Secretary of State has agreed these terms and is not willing to negotiate different terms for individual projects. The only acceptable variations between different funding agreements are those clauses that reflect the specific circumstances of that school, such as land arrangements, the planned capacity of the school, faith or non-faith provision, and arrangements for free schools with predecessor schools. The model funding agreement makes clear where these variations will be made, and your RG delivery officer will tailor them accordingly before sending the document to you.

When you should begin the process for entering into a funding agreement

The timing for entering into a funding agreement will vary depending on the project. Your RG delivery officer will decide the appropriate time for your project. Funding agreements are usually signed when a project has achieved all its main milestones and the RG delivery officer judges that the school is likely to be good and viable on opening.

There are a small number of circumstances in which we might consider entering into a funding agreement before all these main milestones have been passed. The most common circumstances are:

• when entering into a build contract for a permanent site
• to enable schools to enter local authority co-ordinated admissions

We aim to have all funding agreements in place by the following dates in the year in which your school will open. This will depend on whether the project has achieved its main milestones and is on course to be good and viable on opening:

• mainstream school: one month ahead of national offer day (1 February for secondary schools and 15 March for primary schools)
• special school: in sufficient time to enable the school to be listed on a child’s EHC plan, which local authorities need to review by no later than 15 February if the school is opening in September or one term before it opens if it is opening in a month other than September
• AP school: one term before it opens (by mid-April for September openers)

Your RG delivery officer will normally want to arrange a formal checkpoint meeting with your academy trust to make sure that everything is in place to enable the Secretary of State to sign the funding agreement.

Statutory duties

Before either party can begin the process of signing the funding agreement, there are certain statutory duties that must first be fulfilled by both parties.

The academy trust must consult under Section 10 of the Academies Act 2010 – see the statutory duty to consult section for full details. The trust must also have due regard to Section 149 of the Equality Act 2010.

Section 9 of the Academies Act 2010 requires the Secretary of State, when deciding whether to enter into academy arrangements, to take into account the impact the opening of the free school would have on maintained schools, academies, institutions within the further education sector and alternative provision in the area.

The Secretary of State is also required under Section 149 of the Equality Act 2010 to have due regard to the needs of the PSED in the opening of the free school before the funding agreement can be signed. Management of these processes will be undertaken by your RG delivery officer.

In addition to the completion of statutory duties, the Secretary of State will want to be satisfied that the school will be popular and successful on opening. In making this decision, they will consider if the school:

• will deliver a good or outstanding education, according to the Ofsted criteria
• has or will have appointed enough high-quality teachers by the time the school opens
• has strong leadership
• has all their policies in place
• has recruited sufficient pupils to be financially viable
• will be full by the time all year groups are present
• has admission arrangements that are compliant with the school admissions code
• will have a capable and effective board of academy trustees
• has academy trustees with appropriate educational, financial and business experience or expertise
• has arrangements in place to manage conflicts of interest
• will open on an appropriate, value-for-money site
• is financially viable and efficient in its use of resources to promote pupil outcomes
• can cope with reasonable levels of change to its income and expenditure
• has plans for promoting community cohesion that are appropriate and effective for the local context where the school will be based

How to enter into a funding agreement: process and people involved

1. DfE sends the academy trust a signature-ready version of the relevant model funding agreement tailored to the school’s specific circumstances.

2. The academy trust consults its lawyers, if necessary, on land-specific clauses. All other clauses are non-negotiable.

3. The academy trust confirms with DfE that it is ready to sign the funding agreement.

4. DfE provides advice to the Secretary of State on whether to enter into a funding agreement with the academy trust.

5. DfE communicates the Secretary of State’s decision to the academy trust.

6. The academy trust prints and signs (but does not date) a copy (with each annex attached to it) and sends it to DfE.

7. If the funding agreement is approved, DfE arranges for it to be signed, sealed and dated, and sends a hard copy back to the academy trust.

The Secretary of State will not:

• negotiate terms for individual projects

• accept amendments to the model funding agreement

To make sure that the funding agreement is correct, academy trusts must arrange for 2 academy trustees, or one trustee and a witness, to sign the copy. You should leave the document undated when you send it to your RG delivery officer. We’ll date the document at the point it is signed and sealed.

Duration

The timings for the process will vary for each project. The stage that most often holds up the process is agreeing the final version of the funding agreement. You should focus only on the school-specific clauses, as highlighted by your RG delivery officer. We cannot guarantee that you’ll receive your signed funding agreement in the timescale agreed if we’re not confident that the proposed school will be successful.

To speed up the process, you should discuss your preferred timings with your RG delivery officer. This may include being in line with the local authority admissions process. Agreeing a timescale helps to make sure both the academy trust and the RG delivery officer complete the necessary tasks in advance.

Arrangements for academy trusts with more than one school

Academy trusts with more than one school need different funding agreements to academy trusts with only one school. While academy trusts with only one school will have one funding agreement for their only school, trusts with more than one school need:

• a master funding agreement to cover all schools within the trust
• supplemental funding agreements for each individual school

Model funding agreements are available. The master funding agreement contains general clauses (such as the freedom to set the duration of the school day and year). The supplemental agreement contains those clauses that are specific to the individual school.

If you are an existing academy trust looking to open a new free school, the models for academy trusts with more than one school (master and supplemental) will apply to you. Your RG delivery officer will be able to advise on which model you’ll need to use.

Inspections and registration as an independent school

Before it can legally open:

• your free school must undergo an Ofsted pre-registration inspection

• your school must register on get information about schools (GIAS)

16 to 19 free schools are not legally independent schools. Ofsted have agreed that they will undergo the equivalent of a pre-registration inspection. This is to make sure there is parity of accountability for all free schools.

Once open, your free school will have more freedoms and flexibilities than other state-funded schools. However, you are subject to the same Ofsted inspection regime.

See table 13 in annex A for a checklist to help with Ofsted inspections and school registration.

Why you need an Ofsted pre-registration inspection

The Secretary of State must decide whether your free school, when open, is likely to meet the relevant independent schools standards. The Ofsted pre-registration inspection informs this decision.

The relevant independent schools standards include:

• part 1 2a relationship and sex education

• part 2: spiritual, moral, social, and cultural development of pupils

• part 3: welfare, health and safety of pupils

• part 4: suitability of the proprietor and staff

• part 5: premises and accommodation

• part 6: provision of information for parents, carers and others

• part 7: procedures for handling complaints

• part 8: leadership and management

Other areas of part 1 of the regulations (quality of education) does not apply to free schools in the pre-opening phase. We’ll consider your education plans and policies throughout the pre-opening phase and during your readiness-to-open meeting.

The pre-registration inspection is not like a full inspection. It checks if the proposed school is fit to open as measured against the relevant standards.

The full regulations are available at Education (independent school standards) Regulations 2014.

Registering a nursery with Ofsted

You do not need to register your nursery separately with Ofsted if the nursery is:

• contained within the school’s age range and is for children aged 2 years or older, as the free school’s own registration covers this

• run by a subsidiary company that is completely owned and controlled by the free school

The subsidiary company may need to register the childcare separately if:

• a subsidiary company that is independent from the free school runs the nursery

• the free school does not exercise a high level of control over the nursery

Schools that take children under 2 years old must register with Ofsted. Where separate registration is necessary, Ofsted will conduct a number of background checks and a separate pre-registration visit. Following this, they will inspect it under the arrangements set out in the early years inspection handbook. Ofsted will also register the nursery provision on the childcare register.

Timing of pre-registration inspections

Your RG delivery officer will discuss with you when your inspection should happen. The Ofsted inspector will then contact you directly to confirm the date of inspection. You’ll get 5 working days’ notice of your inspection. We expect you to make yourselves available on that date.

Inspections for free schools opening in September will take place in May and June. For free schools opening at other times during the year, inspections will usually take place in the term before opening.

We’ll prioritise free schools that have made the most progress towards opening for early inspection. Ofsted will schedule those that would benefit from having more time before their inspection later. It may seem helpful to have the inspection as late as possible to give yourselves the greatest possible time to prepare, but having an early inspection gives you more time to put right any issues identified by Ofsted before your opening day.

What you need to do ahead of an inspection

You’ll need to provide:

• a plan showing the layout of the premises and accommodation of all buildings
• a copy of the school’s complaints procedure, as outlined in part 7 of the Education (independent school standards) (England) Regulations 2014
• evidence the school has appropriate procedures in place for undertaking DBS checks of staff and is recording the results in an SCR
• a copy of the school’s policy on:
  • preventing bullying – you may find it useful to consider the advice on preventing and tackling bullying
  • safeguarding and promoting the welfare of children who are pupils at the school, compliant with the relevant health and safety law
  • promoting the health and safety of pupils undertaking activities outside of the school - see the health and safety advice for schools
  • promoting good behaviour among pupils, setting out the sanctions you’ll adopt in the event of pupil misbehaviour

You’ll need to provide these documents directly to Ofsted. Ofsted will provide information on how to do this when it advises you of your inspection date.

If you do not submit the necessary documents in time, Ofsted may delay your inspection. This could impact on the opening of your school.

Compliance with the Regulatory Reform (Fire Safety) Order 2005

You’ll need to be able to demonstrate to Ofsted that your school is meeting the requirements of the Regulatory Reform (Fire Safety) Order 2005. Academy trusts should make sure that they comply with the fire safety order. We’ll not agree your registration until we get confirmation of satisfactory fire precautions.

You’ll need to inform the local fire and rescue service ahead of opening. The fire service may decide not to inspect the premises immediately. They’re not under any obligation to provide this service before the school opens, though many will do so.

To confirm you have satisfactory fire precautions, Ofsted will consider one or more of the following:

• written confirmation from the fire and rescue service that they have approved your fire risk assessment in principle

• documentation or a certificate issued by an independent fire safety advisor

• confirmation that you have undertaken a fire risk assessment and are complying with the Regulatory Reform (Fire Safety) Order 2005

• a completion certificate confirming construction of the school premises is in accordance with building control regulations and in compliance with fire safety standards

The day of the inspection

The inspector will usually spend half a day with your school. The principal designate or the lead proposer will normally need to escort the inspector. They may also need access to some office space to work. While, in most cases, it is the principal designate who talks to the inspector, it does not have to be. As long as someone else in the group can talk through the policies and plans, the principal designate does not have to be there. Ofsted will not rearrange the date of the inspection simply because the principal designate is unavailable.

To make a judgement about each of the standards, the inspector may ask to see other policies on the day. If a particular document is not available, whomever is meeting the inspector needs to be able to discuss the plans for its development. If the work on the site is not yet completed, they will need to talk to the inspector about how the building will develop. If site works are still underway and it is possible for you to show the inspector around, that would be desirable but is not necessary.

The building work does not need to be completed ahead of the inspection. The inspector will need to see evidence that you’ll meet all the requirements of part 5 of the standards by the time the school opens.

After the inspection

After the inspection, the inspector will provide us with an advice note with their view on whether the school is likely to meet the independent school standards when it opens. Your RG delivery officer will tell you the outcome but you’ll not receive a copy of the advice note.

If the Ofsted feedback indicates there are issues that you must address, known as conditions of registration, your RG delivery officer will discuss these with you. You must take appropriate action to resolve these before your school can open.

Before you can complete your registration on GIAS, we need to be certain that you have met any conditions.

You should be careful about how you communicate the outcome of the inspection to your local community. These inspections are for Ofsted to advise the Secretary of State whether or not the school is fit to open, rather than providing any judgement of quality. For example, it would be misleading to say that Ofsted has visited and judged your school as good or outstanding just because there are no conditions to satisfy.

Get information about schools (GIAS) registration

Get information about schools (GIAS) is our database of all educational establishments in England and Wales. Being entered on GIAS automatically generates your free school’s DfE number and unique reference number (URN).

Around 9 months before your school is due to open, your RG delivery officer will provide you with a GIAS application form.

Once we have processed the form, we’ll issue you with your URN and DfE number. Your school is initially entered on GIAS as ‘pending approval’. This means the school is not yet fully registered and is not publicly visible or searchable online.

Your school will not be publicly searchable until we change your school’s status to ‘proposed to open’ and registration is complete. This will happen when you have:

• a funding agreement in place

• addressed any pre-opening readiness-to-open meeting actions

• successfully completed your Ofsted pre-registration inspection

DfE sign-in

DfE sign-in is our portal for systems such as:

• collections online for learning, education, children and teachers (COLLECT)

• the school-to-school service

• key to success

• teaching vacancies

• GIAS

We grant access to systems on a user-by-user basis. You’ll only see systems you have permission to access. Not all systems will be available until your free school is open.

Around 4 months before your free school is due to open, your RG delivery officer will be in touch with you to get the details of the person you want to have the initial access to DfE sign-in. The person you nominate will get their DfE sign-in details once:

• you have successfully completed an Ofsted pre-registration inspection

• your free school’s status on GIAS is ‘proposed to open’

Academies (including free schools) and academy trust accounts can have up to 20 user accounts and 2 approver accounts per organisation.

Approvers can create accounts for other members of staff and add services to accounts such as COLLECT. They also archive accounts when they’re no longer in use. It is their responsibility and decision whom they add to the account.

Once registration is complete, it is important that someone at your school takes responsibility for keeping your GIAS record accurate and up to date. We’ll not do this for you. If you do not confirm your school information on GIAS is correct every 60 days, you’ll get a reminder that you need to review and update your details. You’ll get this weekly until you review and confirm details.

Inspections once open

Once open, Ofsted inspect mainstream, AP and special free schools under the same arrangements as maintained schools. Ofsted inspect 16 to 19 free schools under the same arrangements that apply to other post-16 providers. The first full inspection of a free school normally takes place during the third year of opening. For schools with boarding provision, this will be the first year.

Ofsted inspections focus on making sure learners are receiving a high-quality education that puts them on a path to future success.

Ofsted inspectors will spend less time looking at exam results and test data, and more time considering how a nursery, school, college or other education provider has achieved their results.

Many open free schools have found it useful to buy in support to undertake a trial-run inspection ahead of their first Ofsted inspection to identify any outstanding issues. Many providers offer this service and employ former inspectors to deliver it. These external assurance exercises will help validate your school’s self-evaluation and inform school improvement plans ahead of your first Ofsted inspection.

School-to-school support

One of the most effective ways of achieving school improvement is by working with other schools. There are many opportunities for school leaders and governors to work with and receive support from their peers.

Find out more about how to get school-to-school support from system leaders.

Readiness-to-open meeting

Your RG delivery officer may invite you to a readiness-to-open meeting. This to confirm that all necessary plans are in place and ready for your school to open.

Readiness-to-open meetings may be face to face or virtual. In a small number of cases, they may be paper-based, or your RG delivery officer may feel it is not necessary to hold one at all.

Readiness-to-open meetings will normally take place before the end of June ahead of opening in September. They’re formal meetings between DfE and the academy trust. They help to:

• identify issues and risks that might prevent the school from being financially and educationally viable on opening
• assess whether the school’s plans for promoting integration and community cohesion are appropriate and likely to be effective for the local context
• identify actions needed to mitigate risks or address issues
• enable ministers to take decisive action, such as to defer, before the opening date, if necessary

Education and viability will be the main focus of the readiness-to-open meeting. We’ll use the meeting to make a judgement on how confident we’re that you’ll open a successful school.

Attendees from the proposer group should include:

• the chair of academy trustees (both the local governing board chair and the chair of the board of the academy trust should attend, where appropriate)
• the principal designate (the headteacher or executive headteacher may also attend, where appropriate)
• any other person who can provide information useful to the meeting, for example, the chair of the finance committee, or the business manager

Only those who hold a governance or leadership role should attend, with a maximum of 5 proposer group attendees overall.

We’ll postpone the meeting if:

• both the chair of governors and the principal designate are unable to attend
• you return the information we need too late for us to review before the meeting

Preparing for the meeting

We’ll ask the principal designate to complete a risk report at least 2 weeks before the readiness-to-open meeting. The report will:

• underline any risks or issues and the actions needed to address those issues

• identify areas that need further discussion

Your RG delivery officer will discuss the format and aims of the readiness-to-open meeting with you in advance of the meeting.

See table 14 in annex A for a checklist to help you prepare for your readiness-to-open meeting.

During the meeting

A senior DfE official will chair the readiness-to-open meeting. Your RG delivery officer will attend and, where appropriate, representatives from ESFA. We may also ask an external expert to attend.

During the meeting, we’ll:

• ask questions about progress, risks and issues in main areas of the project
• give you an opportunity to discuss the content of the risk report
• agree with you what actions you need to take to address each relevant issue

Once your school is open

Once your school is open, your RG delivery officer will act as the main point of contact. They will monitor your progress in the first few years after opening. We may also allocate you an EFSA link officer, who will be the main point of contact for the school on matters relating to finance. If you are in temporary accommodation or there is still capital work needed on the permanent site, you’ll also work with a project manager from our capital team.

Your RG delivery officer will brief our capital project manager and ESFA link officer on your project. This is so they know what challenges you may experience in your early days of opening.

Once your school is open, you have the freedom, autonomy and responsibility to run it. However, you must follow the requirements set out in the academy trust handbook and your funding agreement.

Important tasks in the early days of opening

You’ll need to:

• contact your RG delivery officer to discuss how you can prepare for an external expert visit (virtual or in person)
• make sure that your academy trust has:
  • approved an annual budget for the first year of operation
  • submitted the annual budget to ESFA by the published timetable
  • implemented the requirements of the academy trust handbook

Working with ESFA

ESFA expects free schools to make the most effective use of their financial freedoms to raise educational standards while operating with full accountability for how they spend taxpayers’ money. You’ll need to provide financial returns to ESFA. This is so they can provide assurance that you are meeting the terms of your funding agreements. Compliance with the academy trust handbook is a condition of your funding agreement.

ESFA supports a free school’s compliance with its funding agreement by responding to any requests that you may make of the Secretary of State as required by the funding agreement. This may include matters such as approval to enter into a lease or to dispose of land.

See table 15 in annex A for a checklist to help work with ESFA.

A guide for newly opened academies, academy trusts and free schools is available. It explains more about how ESFA will work with you on matters relating to:

• funding
• funding agreement compliance
• finance and financial assurance

If you need clarification on a specific issue related to your academy or academy trust, contact ESFA .

Working with regional directors

Regional directors make decisions about academies and free schools in their regions in the name of the Secretary of State.

Their main responsibilities in relation to free schools are:

• advising ministers on which free school applications to approve
• advising ministers on whether to cancel, defer or enter into funding agreements with free school projects in their pre-opening phase
• tackling educational underperformance in open free schools, UTCs and studio schools

Freedom of Information

Free schools are subject to Freedom of Information (FOI) requests. This is because academy trusts are public authorities under the Freedom of Information Act 2000. It provides a right of access to any recorded information held by public authorities.

It does not give people access to their own personal data (information about themselves). If you receive an FOI request that asks for the requester’s personal data, respond to it as a subject access request under the Data Protection Act 2018.

You should handle requests about impact on the environment, such as new school buildings or the change of use of land, under the Environmental Information Regulations.

We cannot advise free schools on how to answer an FOI request. If you are unsure how to deal with an FOI request, speak to your RG delivery officer. They may be able to help you understand what is being asked of you and point you in the direction of useful resources.