Sixth form academisation

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Position statement
04 March 2016
It has been confirmed that the area review process will be the means by which applications for academy status by SFCs will be considered, following the chancellor's announcement in the spending review that sixth form colleges (SFCs) could apply to become academies.

There is no guarantee that academy status will still be available to SFCs once the reviews have concluded. (The DfE is considering whether, exceptionally, applications will also be considered from General Further Education colleges whose age range and curriculum offer means that their future and educational provision in the area might be best served by joining the academy sector.)

It would be necessary for the SFC to dissolve itself and, immediately before dissolution, arrange to transfer its assets and liabilities to an academy company. Unless the transfer were to an existing academy or MAT, it would be necessary to establish a new academy company and negotiate a funding agreement with the Secretary of State. There will be a need to consult all staff and trade unions on the conversion and on TUPE implications. At the present time, there is no procedure for academies to revert to their former legal status.

In the context of the area reviews of post 16 education and training, now well underway, sixth form colleges have been given the option to seek academy status as a pragmatic alternative to the potentially less satisfactory option of merging with an FE college.

Identity and brand

A significant aspect of conversion is likely to be the redefinition of SFCs as part of the education system. The Association of Colleges (AoC) has said that the academy brand is at the heart of government education policy. The Sixth Form Colleges' Association (SFCA) has said that enabling SFCs to become academies would help to move the sector from the margins of education policy to the mainstream. In their view, the SFC sector has been the uncomfortable position of being marooned in a no man's land between FE and schools/academies/free schools. Although the DfE regulates SFCs, there is often a mistaken assumption that the Department for Business, Innovation and Skills is responsible for all colleges which has led to policy confusion.

It would not be surprising if SFCs felt that they had more in common with schools and academies than they do with FE colleges. Over 90% of the curriculum in SFCs is at Level 3 and almost three quarters of that is A level provision. Moreover, the majority of SFC staff hold Qualified Teaching Status rather than a FE teaching qualification. Conversion should make it easier for SFCs to engage with the DfE and schools in their area. It may also make it easier to extend a college's age range and start admitting younger students.

On the other hand, it could be argued that SFCs have a small, distinct and positive niche brand which may be lost if they joined a fragmented system of several hundred secondary academies. However, SFCs would be able convert without changing their name, thus retaining the title (and brand) 'sixth form college' they could also chose to remain members of the SFCA. Although this may appear to be unlikely, it would be a logical approach if they really do value the SFC brand.

Where a SFC transferred to a MAT, there would be a loss of autonomy to a single shared governing body, although it is possible for powers to be delegated to each academy by the MAT, via a scheme of delegation to the academy's own governing body. Joining a MAT may result in greater involvement in secondary education to the detriment of a focus on 16-19 education.

Finance

It is often argued that main advantages of academy conversion are financial. The Chancellor has confirmed that converting SFCs (like other academies)will be able to recover VAT on all non-business expenditure, which could save a SFC around £250,000 a year. Academies also benefit from DfE assistance with insurance premiums and with the pooling of LGPS pension liabilities, and it is possible that these will also be available to converting SFCs.

However, as an academy, a SFC would need to sign a funding agreement with the Secretary of State which is likely to be more prescriptive than the current rules that apply to SFCs. Also, for some SFCs, the loss of income from charging fees to non-EEA students could act as a significant disincentive to academisation. The Higher Education Funding Council for England has confirmed that it cannot provide funding 16-19 academies directly, although this would be possible through a franchise arrangement. Although academies cannot borrow money on the open market, they can, like SFCs borrow for capital projects.

The DfE has said that before an academisation proposal can go ahead, both the college and, where applicable, any existing MAT which the new academy will join, will need to complete due diligence on the financial and legal aspects of the transfer. Although this does not have to be completed in full before an application is approved, applications will need to set out sufficient information to provide assurance that the new academy will be solvent and viable. In addition, SFCs would be wise to consider some of the egregious examples of poor financial amongst existing academies and MATs before proceeding.

SFCs which apply to become an academy can apply for funding from the post-16 restructuring facility to support implementation of the recommendations of area reviews on the same basis as other colleges.

Pay, conditions and collective bargaining

SFCs can already employ staff on whatever terms and conditions they consider appropriate, although in practice most SFCs offer the NJC ('red book') terms and conditions originally developed from those of local authorities immediately before incorporation in 1993. Pay awards are negotiated nationally between the SFCA and the recognised unions, although individual SFCs have the freedom not to pay in accordance with the nationally agreed award, although only a minority have exercised this freedom.

Similarly, academies can set their own terms and conditions and are not bound by the School Teachers Pay and Conditions Document (STPCD), or the Burgundy Book (teachers) and Green Book (support staff) provisions. in practice, most academies, being converters as opposed to new schools, will have staff transferred under TUPE from the former maintained school, on their existing conditions. Even for newly appointed staff, the majority of Multi-Academy Trusts (MATs) follow closely the provisions of the STPCD, the Burgundy Book and the Green Book.

Staff of an SFC which converts to an academy would also transfer to the academy on their current terms and conditions.

In the same way as SFCs tend to follow national SFCA terms and conditions, MATs normally agree MAT wide terms and conditions that individual academies are expected to follow. The SFCA says that at least one 16-19 free school has already adopted SFCA terms and conditions for its staff, and it hopes that any SFC that converts to academy status will do likewise. Clearly, however, there is a risk that the sector will be fragmented and the national bargaining arrangements undermined. Having to deal with a number of smaller MATs would present difficulties in terms of collective bargaining, although some MATS are already approaching the size of the SFCA.

As academies are in the public sector whereas SFCs are in the private sector, conversion would, as the AoC has noted, be a form of nationalisation and would involve a greater degree of regulation, in terms of the employment of staff for example. This may have some positive benefits for staff; for example support staff may benefit from a greater of pension protection under the "Fair Deal for staff pensions" provisions.

The option of merging with a FE college is likely to be more of a threat to pay and conditions in the long term than converting to an academy.

Finally, in terms of union recognition, the SFCA recognises only ATL, NUT and NASUWT, whereas MATs tend to recognise in addition a number of other leadership and support staff unions.

Way forward

It does appear to be the case that joining a MAT is likely to be the government's favoured option (although not a prerequisite) for conversion. This could involve a SFC becoming a sponsor and establishing a new MAT (for an educationally and financially strong SFC); joining an existing MAT as a partner (for an educationally strong and financially sound SFC); joining a MAT with a strong capacity to drive improvement ( for an educationally weak SFC); joining a financially strong MAT for a financially weak SFC).

For a SFC to convert to being a non-MAT stand-alone academy, it is likely to need to be financially and educationally strong, and with demonstrable potential to develop partnership arrangements with local schools and other education providers.

Some 6FCs (in a strong educational and financial position) may still wish to continue as they are, as stand-alone SFCs. However, following the area reviews it is likely that a larger number will either convert to academy status or merge with FE colleges. This is likely to make any remaining 6FCs even more vulnerable to the perception that they belong to an isolated and potentially vulnerable sector. By contrast, belonging to a large academies sector (and retaining VAT payments), either as part of a MAT or on a stand-alone basis may present itself as being a more attractive proposition.

Here is a list of possible sixth form college options for collaboration.

ATL's position

Although ATL does not share the Government's apparent belief that academy conversion is a panacea for dealing with the financial or educational challenges facing schools or SFCs, for some SFCs (and ATL members in those colleges), conversion may well be an attractive alternative to being forced into a merger with a neighbouring FE college. Regrettably, SFC staff find themselves caught between two unproven government drivers, both of which are fraught with risks – on the one hand a cost-driven and narrowly-focussed area review restructuring of FE, and on the other, the academisation of schools. Moreover, as the AoC's assistant chief executive has written; "It is an odd comment on the education system that the government would prefer to nationalise dozens of SFCs than tackle long standing injustices in VAT legislation."

However, given that SFCs have to work within the existing education system, and the fact that SFCs are already independent institutions outside of local authority control (and indeed outside of the public sector), there may not be substantive grounds for opposing conversion to academies within the public sector may be the least worst option, particularly where SFC terms and conditions, and the SFC name and brand, can be preserved.

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Academisation