Governance and COVID-19

During these unprecedented times schools and academies are rapidly making preparations to be able to navigate the growing COVID-19 crisis. One aspect that needs to be given attention is the continuity of governance. While schools are highly likely to close at some point to respond to the crisis, it is important that key decisions are still able to be made and that governance continues, albeit in an alternative way. The key consideration for schools and academies is how can they adapt in the circumstances and still comply with their constitutional arrangements.

The constitution for maintained schools is set out in statute, instrument of governance and also supplemented by regulations in the form of the School Governance (Roles, Procedures and Allowances) (England) Regulations 2013. Of particular note, and of relevance to this situation, is the provision for ‘Chair’s Action’.  While this does not allow for the chair to effectively assume decision-making powers in place of the governing body for all matters, it does provide a useful tool to enable matters of particular urgency to be dealt with by the chair without the need for full governor participation. The maintained school regulations provide that the power can only be used by the chair where a delay is likely to be seriously detrimental to the school, a pupil or their parents, or a person who works at the school.  Therefore the power is very specific and of course the key point of consideration is whether there would in fact be a ‘delay’ in order to allow the power to be triggered. Routine governing board business will not come within the scope of that power.

‘Chair’s Action’ is not replicated in the model constitution of academy trusts (articles of association). It is a matter for the governing board of an academy trust to delegate such power to the chair / vice-chair. Given these unprecedented times it is important that academy trusts ensure that such delegation at the very least mirrors the maintained school regulations in this regard. It is unclear what matters may arise in the coming weeks and months that may require urgent action. It is therefore vital that governing boards take steps now to ensure there is adequate provision in place, with proper delegated authority, to allow for decisions to be validly made in the alternative, both at trust and local governing level.

Independent schools should also review their constitutions to understand what powers the chair already has to act alone and what may be needed in order to delegate power to accommodate urgent decisions to be taken.

Action taken by the chair in reliance on the power given under regulation or delegation must be reported back to the governing board at the next meeting or earlier. Strong lines of communication will be critical during this time to keep governance on track and to allow for proper oversight and scrutiny to continue.

While it is important to ensure the chair has appropriate power to act, governing boards must look at ways of still being able to hold meetings. There is flexibility in school constitutions to allow for governing board meetings to be held in alternative ways from the traditional face-to-face model. Independent schools will need to consider if this is permissible under their constitutions. Schools should now look at the resource available to hold remote meetings to ensure that the continuity of governance can be preserved even during a school closure period so as to fully support the headteacher/CEO and senior leadership team/executive team during these testing times. These facilities can also be used to allow the executive, SLT and middle management to keep in contact and effectively manage the unfolding situation.

Governing boards should look at the resources available to allow them to continue to be able to hold planned and extraordinary meetings of the governing board along with the committees within their governance structure. There are virtual meeting facilities available provided by Microsoft Teams and Skype Business (although other services may be available). There is also the more simple telephone conferencing option to allow for members of the board and committees to be able to join a meeting to discuss matters of ongoing importance which will not be negated by school closure.

Boards should also be mindful that decisions can be validly taken if the meetings are quorate with the minimum number of attendees present as specified under their respective constitutions. This will accommodate the governing board being able to function on reduced numbers. All meetings should be properly minuted and subject to agendas agreed in the usual way, circulated on notice either in accordance with the general notice period or, if extraordinary, called on shorter notice as agreed with the chair.

Some practical steps to consider are as follows:

1. What powers does our chair currently have? What needs to be given to ensure urgent decision can be taken without delay?
2. Do we need to replicate these powers for local governing body chairs?
3. What resource do we have or can we acquire to preserve the continuity of governance? How quickly can this be deployed?
4. Is an extraordinary meeting needed now to update the governing board on contingency plans, risk assessment and educational provision in closure? In addition, do we need to pass a resolution giving the chair the necessary powers to act and to permit alternative ways of holding meetings?
5. Is the chair able to properly engage with the governing board to keep them updated between meetings in order to assist the executive, headteacher and SLT?

For further updates and other articles discussing the impact of the coronavirus please view our coronavirus hub.