Decision Maker: Cabinet Member for Education Skills and University
Decision status: Recommendations Approved
Is Key decision?: Yes
Is subject to call in?: Yes
The Cabinet Member:
1. Approved the closure of Wittering Primary School, and authorise the execution and completion of a Commercial Transfer Agreement (CTA) between Peterborough City Council, the Governing Body of Wittering Primary School and Soke Education Trust;
2. Authorised the grant of a 125 year lease of the land and buildings occupied by the school known as Wittering Primary School (including the families centre) at a peppercorn rent to Soke Education Trust;
3. Authorised entering into Deeds of Novation with Soke Education Trust and the Governing Body of Wittering Primary School, for the following contracts to be novated from the Governing Body of Wittering Primary School to the Soke Education Trust:
a) Solar Power Purchase Agreement dated [ ] between (1) Peterborough City Council (2) Wittering Primary School; and
b) PV System Roof Access Agreement dated [ ] between (1) Peterborough City Council (2) Wittering Primary School
4. Authorised entering into Deeds of Assignment or Novation with Soke Education Trust (and if applicable, the relevant contractor(s)) to assign the Council’s interest in (or novate if applicable) the following contracts, to Soke Education Trust, to give effect to the terms of the CTA:
a) Contract dated 5 August 2013 between (1) Peterborough City Council (2) Benchmark Contracts Ltd; and
b) Contract dated 12 December 2013 between (1) Peterborough City Council (2) Princebuild Limited.
The Council is obliged under the Academies Act 2010 to cease maintaining a school on the date it opens as an Academy. The DfE expect Local Authorities to co-operate with the Academy conversion process, once approved by the Secretary of State for Education.
The Council’s consent is not required for a school to convert to an Academy and if the Council does not cooperate with the conversion process and negotiate and enter into lease arrangements and a CTA, the Secretary of State has the power to make transfer schemes under the Academies Act 2010 in relation to property, land, rights and liabilities (including rights and liabilities in relation to staff) which would be binding on the Council. It is therefore preferable for the Council to reach agreement with the Governing Body of the schools and Trust and enter into the lease arrangements and CTA in respect of these matters, rather than be subject to transfer schemes made by the Secretary of State.
The proposed lease to the Trust includes the land currently occupied and used for the purposes of the school, and also the land within the school grounds which is currently operated as a families centre. The dual use of these facilities will be covered in the lease to ensure that clawback associated with Sure Start grant funding (to protect this area for early years provisions) is not triggered. Staff at the families centre will transfer to the Trust under the Transfer of Undertakings (Protection of Employment) Regulations 2006.
The CTA sets out the respective obligations of the Governing Body of the school, the Council and the Trust arising from the academy conversion in relation to employees, contracts and assets (other than land), and the liabilities of each of the parties in that regard.
Under the proposed terms of the CTA, the Council is obliged to assign the benefit of contracts entered into by the Council for the purpose of operating the School, to the academy trust, and recommendation 4 therefore requests authority to enter into a Deed of Assignment with the Trust to give effect to the terms of the CTA.
The Governing Body of the school is also obliged, under the proposed terms of the CTA, to assign and/or novate contracts it has entered into for the purpose of operating the school, to the academy trust. The Governing Body of the school has contracts with the Council in respect of solar panels and PV which are located on the school, and recommendation 3 requests authority to enter into Deeds of Novation to enable the Governing Body of the school to novate those to Soke Education Trust.
There is a charge of £5,000 from the Council for every school converting into an Academy to contribute towards the associated costs for the Council.
Refuse the closure of Wittering Primary School and the transfer to academy status: Once the school has been accepted for academy status by the Secretary of State, the Council is required to support the decision. Failure to cooperate could result in the Secretary of State making transfer schemes which would be binding on the Council.
Not to transfer the premises: This option was rejected because the Department for Education guidance specifies that the land held by the Local Authority is to be leased to the academy on a 125 year lease for a peppercorn rent and failure to follow the guidance and cooperate could result in the Secretary of State making a transfer scheme in relation to the land.
Sell the site to the Trust: This option was rejected because there is no requirement for the Trust to buy land (for which no funding has been made available) and the Council would prefer to retain ownership.
Not to assign the benefit of the Council’s Benchmark and Princebuild contracts to the Trust: This option was rejected because if the Council retained the benefit of these contracts, if any claim in relation to those works in respect of the school were to arise, it is likely that the Council would then have to become involved or take action on behalf of the Trust. Assigning the benefit of the contracts allows the Trust to deal with any such claims directly.
Not entering into deeds of novation to enable the Governing Body of the School to novate the solar panel and PV contracts to the Trust: This option was rejected, as this would result in the Council not having the proper documentation in place with the Trust in respect of the solar panels and PV located on the School.
To retain the families centre and exclude this from the lease to the Trust: This option was ruled out due to the location of the centre within the school building and grounds.
Publication date: 29/11/2017
Date of decision: 29/11/2017
Effective from: 05/12/2017