Choice Voting is a private company that enables elections to be held online. In the last 18 months they have helped over 300 schools run electronic elections.
This page explains how Choice Voting could be used to run school governor elections. I also asked Managing Director Jason Hawkins whether the DfE approve of this software, how they handle GDPR and privacy concerns and how they ensure ballots are anonymous but only eligible people can vote.
The Constitution Regulations 2012 specifically permit electronic parent governor ballots in maintained schools (as long as a paper option is offered too) and academy trusts can choose to permit electronic ballots. It’s also possible to hold staff governor elections online as long as the election authority permits it.
Disclaimer: I have never used Choice Voting to run an election so I can’t vouch for them personally. If your school have used their service please get in touch as I would love to hear your views, whether positive or negative. I have not been paid to feature this company on Ask A Clerk.
How is the software installed?
The Choice Voting software runs in your web browser, it is not installed locally on your PC.
How is the election set up?
First the school signs up for an account and sets the basic details of the election such as the closing date and the number of vacancies to be filled. The candidate names are added, along with their election statements.
Next, details of eligible voters can be typed in one by one or you can import a comma separated values (CSV) file, which can be generated by Excel or another spreadsheet program. The importing process is explained here and a sample file is provided so you can see the headings you need in the spreadsheet.
There are two ways to register eligible voters. First, you can use their real names and email addresses. Second, if you do not wish to input these personal details you could instead assign a reference number to each voter and type that number in instead.
The advantage of the first option is that the software can send out invitations via email asking people to vote; the disadvantage is that you need an email address for every voter.
Schools can schedule a demo of the software where the company will talk you through the process.
How do people vote?
Once the election has been launched voters visit a web page to cast their vote. If they click the link in an email sent directly from Choice Voting they will be automatically logged in.
They will see the candidate names and statements and asked to choose their preferred candidate(s). The software prevents them from casting multiple votes.
Once the election has closed the school logs in to their account and the results are available to view, with the votes automatically counted by the software.
How much does it cost to run one election?
The price depends on how many voters are eligible to take part in the election (not the number of votes eventually cast), so in effect it will depend on the size of your school.
A calculator allows you to find the rough price for your school, but the company offer discounts specifically for school elections with over 400 voters so this is a rough guide only. (Remember that in parental governor elections the usual rule is one vote per parent per vacancy, not one vote per family.)
If you have 500 eligible parent voters, for example, the rough cost to run one election is £67.50. For 1000 voters it becomes £112.50. For 2000 voters the cost is around £202.50.
Schools can run unlimited elections for a fixed annual fee. You can also run elections with fewer than 20 voters for free in order to test the system.
Can the school see how someone voted?
No. The person with the Choice Voting login details sees the results of the election but could not look up, for example, how Mr Bob Smith voted as the votes are shown anonymously.
If voters have been added to the system using their real names and email addresses they are assigned a “voter key” and a “voter ID” to anonymise them. These are strings of number and letters, so a voter ID might look like this: JPQEUZVTKPQ6.
Does the DfE approve of this software?
I asked the Managing Director of Choice Voting, Jason Hawkins, to address this question and his reply is below.
“Whilst we haven’t had conversation with DfE directly, we work alongside an independent scrutineer organisation that is registered for parliamentary elections and House of Lords elections and we work closely together to ensure we meet the requirements of many organisations.
“We deal with political parties and trade unions as well as charities on a daily or weekly basis and have conducted many thousands of elections with these organisations.”
Jason Hawkins, Managing Director of Choice Voting
How does the software allow anonymous elections while blocking ineligible votes?
The technology behind the software is explained below.
“Ensuring that only eligible voters may take part in an election is a standard that would be expected from election-specific software. We have addressed this concern in multiple ways.
“Our voters may only vote once, and at the point of voting their voting rights are ‘locked in’ and ballots cannot be changed, therefore another person may not share or use existing login credentials. We have additional safeguards that mean the voters don’t actually know login credentials to share.
“Each voter is given a unique key and ID combination. This is then encrypted and paired to a certificate in our software. When voters receive an invitation to vote they will be presented with a “vote now” button. This button also has a key pair attached to it and a combination of checks ensure that this keychain has not been altered in anyway.
“Voting is anonymous. An election administrator will never know who made which selection during the submission of a ballot. An administrator will however have a real-time audit feature that allows them to see as live voting statistics on the performance of the election, including the ability to guide and help those that haven’t yet voted.”
Jason Hawkins, Managing Director of Choice Voting
Do schools need to hand over email addresses? What about GDPR?
If schools are planning to run the election using email addresses they must make sure that the parents or staff know their data will be used in this way (although that’s less of a problem if your staff use school email addresses of course). A data sharing agreement can also be used.
“There are a number of ways to look at this. Choice Voting can send out personalised invitation emails to all parents that inform them how to vote, what the vote is about and when the vote is available. It will use the key pairing described above.
“However, we do not ever insist that you add a parent’s email address, or a real name; it could be a reference number for example. The caveat here is that if you don’t include an email address then we are unable to send the notification to vote email. We do though provide you with the required information to enable you to send this using your own systems if required.
“We will request that you have informed and gained consent from parents to include them in the election. We do not use any voter or candidate data for marketing purposes, sell or re-use data or make use of any data for purposes other than informing a voter how to vote at the start of your elections.
“You may download an encrypted copy of your election, delete everything, and if you need to run a similar election in the future, upload the encrypted file and everything is put back in place in the same way you left it. We have data sharing agreements that we are happy to sign and share with schools where required.”
Jason Hawkins, Managing Director of Choice Voting
Jason Hawkins also told me that personal data is encrypted and once an election is over the school can delete specific data (eg: all voter data) or delete the election completely.
Governors or trustees must approve pay rises for the headteacher and will usually approve pay rises for senior leaders as well. In many schools they also approve pay rises for all teachers.
Pay decisions are usually made by a pay committee. If a teacher is refused a pay rise they have the right to appeal, with their case heard by a separate group of governors who have not sat on the pay committee.
This page explains the common procedures for the pay and appeals process, but check the teachers’ pay policy at your own school (as well as any terms of reference for existing committees) to see the rules at your own setting. The DfE provide a model pay policy in their document Implementing Your School’s Approach To Pay.
Pay Committee Procedures
The role of the pay committee is to make decisions on pay progression, which means whether teachers move up a point (or “increment”) on their pay scale.
Decisions in maintained schools depend on how well the teacher has done their job and the results of their annual appraisal; this is know as performance-related pay. Academies may use performance-related pay but do not have to.
Your school may have a separate pay committee or it may be part of the wider responsibilities of another committee that covers finance or resources.
It is not wise to allow pay decisions to be made at full governing body meetings. This is because teachers should be given a right to appeal against a decision and you will need a separate group of governors to hear that appeal.
For example, the model pay policy from my own LA states that a pay appeal must be heard by governors who have not been previously involved in making pay decisions for that teacher.
“The appeal committee will consist of three governors, none of whom have been previously involved in the pay determination for that teacher.”
In both maintained schools and academies there is no maximum number of governors/trustees who can join the pay committee, but it is wise to make sure at least three governors or trustees do not join the pay committee so they can sit on the appeals panel.
Check the teachers’ pay policy for your own school or academy to see exactly how many governors or trustees will be needed if a teacher appeals.
The full governing body decides who sits on the pay committee and the terms of reference for that committee should state how many governors are members and the number of governors needed for a quorum.
In maintained schools there must be a minimum of threegovernors on the pay committee, because that is the minimum quorum set by the Roles, Procedures and Allowances Regulations 2013. With two governors or fewer the committee cannot make decisions.
“The governing body must determine the constitution, membership and terms of reference of any committee they decide to establish and review them annually.
“The quorum for any meeting of a committee must be determined by that committee, but in any event must be not less than three governors who are members of the committee.”
In academies it is up to the board of trustees to decide how many trustees form the pay committee. Check your committee’s terms of reference for details.
Who can join the pay committee?
In all schools the pay committee should be formed from governors or trustees who are not employed by that school.
In maintained schools the law forbids all school employees apart from the headteacher from voting on an employee’s pay or appraisal or taking part in the related discussions. The headteacher is also forbidden from voting on their own pay, but is legally allowed to vote on the pay of all other staff.
“(1) This sub-paragraph applies where a relevant person who is paid to work at a school other than as head teacher is present at a meeting of the school at which a subject of consideration is the pay or performance appraisal of any particular person employed to work at the school.
(2) This sub-paragraph applies where a head teacher of a school is present at a meeting of the school at which a subject of consideration is the head teacher’s own pay or performance appraisal.
(3) In any case where sub-paragraph (1) or (2) applies, the relevant person’s interest will be treated for the purpose of regulation 16(2) as being in conflict with the governing body’s interests.”
Therefore, if a maintained school pay committee is voting on the headteacher’s pay no school employees at all can take part in discussions or vote.
If the pay committee is voting on the pay of any staff member except the headteacher then only the headteacher can legally take part and vote.
However, even though the law allows the head to sit on a pay committee as long as their own pay is not being discussed, this is not considered good practice. The pay process is more robust if the person making the recommendations does not take part in the final decision.
The head still attends meetings of the pay committee but only to explain their recommendations on pay rises and answer questions from governors. The pay committee must then approve or reject these recommendations.
In academies the law quoted above does not apply, but the rules on conflicts of interest in your article of association mean that no trustee employed by the academy can vote on whether to give one of their colleagues a pay rise.
The chief executive officer or principal can attend the pay committee to make recommendations but should not have a vote and must leave the meeting if their own pay is being discussed.
There is a specific rule in the model articles of association that requires trustees to withdraw from a meeting when their own pay is being discussed.
“Any trustee who has or can have any direct or indirect duty or personal interest (including but not limited to any personal financial interest) which conflicts or may conflict with their duties as a trustee shall disclose that fact to the trustees as soon as they become aware of it.
“A trustee must be absent from any discussions of the trustees in which it is possible that a conflict will arise between their duty to act solely in the interests of the academy trust and any duty or personal interest (including but not limited to any personal financial interest).
“For the purpose of article 97, a trustee has a personal financial interest in the employment or remuneration of, or the provision of any other benefit to, that trustee as permitted by and as defined by articles 6.5-6.8A.”
Yes. All governors must consider whether they have a conflict of interest, as they must for any vote, but a governor is not automatically conflicted just because their child attends the school (or used to).
The DfE advise in their document Implementing Your School’s Approach To Pay that one reason a teacher could appeal is if one of the original decision-makers was biased. This might apply to a governor who is related to or close friends with a member of staff, for example. In that case the governor obviously should not be making decisions about whether their friend or relation gets a pay rise.
Can the chair of governors sit on the pay committee?
Yes. Some schools allocate the chair of governors or trustees to the pay committee and save the vice-chair for an appeals panel (or vice versa), but there are no rules that restrict whether the chair or vice-chair should be on the committee.
Who can see minutes of the pay committee?
Minutes are usually sent only to those governors who are members of the committee. This is because the remaining governors may need to hear an appeal and could be influenced by the reasoning or decisions recorded in the pay committee minutes.
Should governors see teachers’ actual salaries?
No. Governors will usually be given an anonymised report that describes staff as teacher A, teacher B and so on. The report will show whether a teacher has fully or partially met each of their objectives. It may also show how their lessons have been judged (eg: Outstanding, Good etc) or include a short comment from the appraiser.
Salary recommendations are shown as points on the payscale rather than actual figures such as £25,000, so one recommendation might say “Teacher A: met two objectives fully and one partially, recommend move up from M1 to M2”.
In small schools it is not possible to completely anonymise salary recommendations and even in larger schools some of the higher salaries are easily identified – the highest paid teacher is clearly the headteacher, the second highest the deputy head and so on. However, there is no need for governors to know the exact amount each teacher is paid.
What governors can ask for is data on the protected characteristics of teachers under the Equality Act 2010 including race, sex, age and disability. This will allow them to check for any signs of discrimination or bias, for example female teachers receiving fewer recommendations for a pay rise than males.
“It is good practice for schools to record what steps they undertake to avoid discrimination. Equality monitoring is the most effective and efficient method of identifying potential inequality in workplace policies and procedures.
“A breakdown of pay decisions according to each protected characteristic (where applicable) would provide an initial snap-shot. Comparisons year-on-year would then show trends and may identify potential discriminatory practices or procedures.”
In maintained schools the minimum and maximum salaries for each payscale are set by the School Teachers’ Pay and Conditions Document (STPCD). Below are the various payscales named in the STPCD.
The unqualified teacher pay scale.
The main pay scale for qualified teachers, often written as M1, M2 etc. Traditionally there were six points on this pay scale but your school may have more or less. A newly qualified teacher would join the school on the main pay scale.
The upper pay scale, often written as UPS1, UPS2 etc (or UP1, UP2). Qualified teachers can apply to be paid on the upper pay scale at least once a year. Traditionally there were three points on this pay scale but your school may have more or less.
The leading practitioner pay scale, for teachers who are modelling and leading the improvement of teaching skills.
The leadership grouppay scale, for senior leaders. Often written as L1, L2 etc.
The specific salaries for each point on the payscale will be shown in your school’s pay policy. For example, in my LA’s model policy a teacher on the main payscale point M1 earns £25,714 and a teacher on UPS3 earns £41,604.
Governors may also discuss the individual schools range (ISR) for the head, deputy head and and assistant heads. This means the minimum and maximum pay points they can receive. For example an assistant head might be paid on an ISR of L10 to L14.
Finally, a teaching and learning responsibility (TLR) payment may also be discussed. This is an extra payment given to teachers who take on additional responsibilities.
In academies boards do not have to follow the School Teachers’ Pay and Conditions Document unless staff have transferred to the academy under the Transfer of Undertakings (Protection of Employment) or “TUPE” process. If staff transferred under TUPE their contract remained the same so the STPCD still applies.
Many academies choose to follow the STPCD anyway, even when the TUPE process does not apply. Check the pay policy of your academy trust to see the pay scales and processes in use.
Should governors see teachers’ appraisals?
No, the details of the appraisals are considered confidential to each employee. Governors can ask questions about the appraisal process to check it is effective, fair and using appropriate evidence, but they do not need to view the actual appraisals.
“The appraisal and capability processes will be treated with confidentiality. However, the desire for confidentiality does not override the need for the headteacher and governance board to quality-assure the operation and effectiveness of the appraisal system.”
Should governors make pay decisions for all teachers or just senior leaders?
Governors must make decisions about the headteacher’s pay and a separate articles covers the head’s appraisal process.
For all other teachers it is up to the governing body whether to take decisions themselves or delegate the decision to the headteacher or an individual governor. The DfE model pay policy indicates that procedures can vary from school to school.
“Insert any particular arrangements for your school. For example, decisions may be made by an individual (eg: a governor or the head) or a pay committee of the governance board).”
The most common advice seems to be that at minimum governors should make pay decisions for the senior leadership team (SLT).
The National Education Union recommends that the pay committee makes pay decisions for “all leadership group” teachers. It is up to the governing body whether pay decisions for teachers below that level are made by governors or delegated to the head or chief executive officer and this may depend partly on the size of the school.
“Governing bodies are permitted to delegate pay decisions to a governing body committee, individual governors or the headteacher.
“The NEU advises that decisions in respect of all leadership group teachers should be taken by the governing body committee responsible for pay/staffing issues and reported to the full governing body.
“Decisions in respect of deputy and assistant headteachers should not be delegated to the headteacher alone.”
The pay committee members receive limited information because they cannot see the actual appraisals. However, governors should be asking questions to ensure the pay process is robust and decisions justified, that the school’s approach to pay is having an impact and that the budget implications of pay rises have been considered.
“Will the governance board be able to defend its decisions if challenged (eg: by dissatisfied teachers or by Ofsted)?
“Governance boards will need to satisfy themselves that objective-setting is rigorous and that the school’s pay policy provides a clear link between levels of achievement and progression.”
The DfE model pay policy says the governors need to make decisions “in the light of the school’s budget” and ensure that their school can afford the increases.
“The governance board will consider its approach in the light of the school’s budget and ensure that appropriate funding is allocated for pay progression at all levels.”
Here are some possible questions that the pay committee could ask.
Does the number of staff passing through to the upper pay scale match the overall quality of teaching?
Do the overall number of pay rises correlate with the overall quality of teaching?
Do pay rises correlate with pupil outcomes?
If all teachers have met all their objectives, were they ambitious enough? If many teachers have failed objectives, were they too tough?
When was a pay rise last denied?
If pay rises are never denied are we sure objectives are ambitious enough and appraisals fair but rigorous?
How do you know that appraisals are fair and take into account relevant evidence?
If a move to the upper pay range is recommended, how do we know that teacher has made a “substantial and sustained” contribution to the school, which is a requirement of STPCD?
What are the total costs of implementing these proposed pay rises?
Has the cost been accounted for in the budget?
Appeal Panel Procedures
If a teacher has been denied a pay rise they should be given a chance to appeal against the decision. They might argue for example that the school’s pay policy was not applied correctly, that evidence used in their appraisal was inaccurate or that they were discriminated against.
“Schools should ensure that an appeals procedure is in place before any pay determinations are made. What follows is intended as a guide as there is no statutory process for schools to follow in terms of hearing pay appeals.”
There is no statutory process for pay appeals but the DfE recommend a three-stage process as follows:
An informal discussion with the appraiser or headteacher before the pay recommendation is confirmed.
A formal representation to the person or governors making the decision on pay.
An appeal to a panel hearing involving governors. The decision of the governor appeals panel is final.
“In the hearing before governors, both the teacher and the management representative will have the opportunity to present their evidence and call witnesses; the parties will also be able to question each other.
“The panel is permitted to ask exploratory questions. The appeal panel’s decision is final and, as set out in section 3 of the STPCD, there is no recourse to the general staff grievance procedure.”
The DfE recommend that three governors form the appeals panel. This matches the recommendation from my own LA, whose model policy says that the appeal panel “will consist of three governors”.
“It is recommended that the panel which hears pay appeals should comprise three governors who were not involved in previous discussions regarding the teacher’s pay determination.”
Crucially, these three governors should not be the same governors who sat on the pay committee or took part in any discussions about the teacher’s pay. This is because the appeals process is designed to give the teacher a fresh, unbiased hearing.
Rather than having a fixed membership of three named governors you could say the appeals panels will be formed from any three governors in the available “pool”. The pool contains all governors who are eligible to hear an appeal.
For example, terms of reference for the pay appeals panel might say that membership consists of “Any three governors who are not school employees or members of the pay committee/headteacher’s appraisal panel.”
Using the pooled approach makes it easier to assemble an appeals panel within the timeframe set by your pay policy.
Who can attend the appeals panel?
Obviously the governor panel and the teacher themselves can attend, as well as the headteacher or senior leader who made the pay recommendation that is being contested.
In addition the teacher can bring a colleague, union rep or representative from a professional organisation. A clerk should also attend to take notes.
“Teachers making representation at stage two and making an appeal at stage three may be accompanied by a colleague or representative from a professional organisation or trade union.
“Pay appeals should be formally clerked and a note of proceedings should be produced.”
Introductions – The chair introduces everyone and explains what their role is, then outlines the order of the hearing. – The human resources clerk takes notes of the hearing.
The Employee Case – The employee or their representative presents the employee case, providing any evidence to support their case, including from witnesses (if any). – A management representative has the opportunity to question the employee. – The chair asks questions and subsequently opens the discussion to the panel
The Management Case – The management representative presents management case, providing any evidence to support their case, including any witnesses. – The employee or their representative has the opportunity to question the management representative. – The chair asks questions and subsequently opens the discussion to the panel.
Summarising and End of Hearing – The employee or their representative sums up the employee case. – The management representative sums up the management case. – If appropriate, the chair can sum up the key points on both sides. – The chair will then end the hearing, advising the employee that they will receive the panel’s decision in writing within a given timescale.
Decision-Making – The panel meet to reach their decision. – The HR clerk notes the main points of the panel discussion and their decision. – The panel obtains HR advice, if required, to inform their decision-making.
Communication of Decision – The employee is notified of the decision. The decision and reason for the decision is confirmed in writing.
There is no requirement for schools or academies to request references for potential governors or trustees.
However, some governing boards do ask for references. In reality I suspect schools that struggle to find volunteers rarely request references, whereas schools with more competition for roles may ask for references to help them choose between candidates.
This page is mostly about appointed governor positions where the board itself (or a linked body like the diocese) decides who gets the position.
Elected governors are elected by staff or parents so there’s no point asking for references, although I will look briefly at whether elected parent governors need to be nominated by two fellow parents.
Note that although obtaining references is optional, enhanced DBS checks and section 128 checks are mandatory for all governors and trustees.
“When you accept a position the school or trust will require an enhanced DBS check. They will normally organise this for you. Volunteers may also be asked by the school or trust to supply references.”
The DfE guidance on the law for maintained schools says that either oral or written references should be “taken as necessary”. References can be used alongside an interview or informal chat with the potential governor to help boards decide who to appoint.
The quote below refers to an “interview or detailed discussion” taking place before appointment, which will usually be with the chair of governors. Again, how formal or in-depth this discussion is will depend on each school and how easy they find it to recruit.
“To make an informed decision on the matter an interview or detailed discussion will need to take place with each prospective candidate, with references (oral or written) taken as necessary and appropriate.”
There is no statutory requirement to check the references of volunteers. Part 3 of Keeping Children Safe in Education (KCSIE) explains the safer recruitment practices which ensure that only suitable people are selected to work and volunteer in schools.
KCSIE explains that all job applicants should provide referees before interview. However, for volunteer roles the guidance says that schools should “use their professional judgement” when deciding “what checks, if any” are required.
Governors will not be supervising children or taking part in “regulated activity” so schools may decide that references are not needed. Note that KCSIE allows the school to consider both “formal and informal” information about volunteers gleaned from staff, parents or other volunteers.
“Whilst volunteers play an important role and are often seen by children as being safe and trustworthy adults, the nature of voluntary roles varies.
“Schools and colleges should undertake a written risk assessment and use their professional judgement and experience when deciding what checks, if any, are required.
“The risk assessment should consider:
– the nature of the work with children, especially if it will constitute regulated activity, including the level of supervision;
– what the establishment knows about the volunteer, including formal or informal information offered by staff, parents and other volunteers;
– whether the volunteer has other employment or undertakes voluntary activities where referees can advise on their suitability.”
A personal or character reference comes from someone who knows you outside of work, for example a person you have volunteered with or a family friend. A professional reference is from an employer.
The guidance from Keeping Children Safe in Education (quoted above) talks about references from employers or voluntary work colleagues rather than personal references. Governors For Schools matches volunteers to governing body vacancies and they also recommend that professional references are requested.
“Schools are responsible for collecting references and DBS checks. A professional reference is generally the best option.“
I do think schools need to avoid discouraging applications from people who might struggle to provide an employer’s reference – for example, someone who has been a full-time parent for years or perhaps receives benefits.
I also think it’s important not to give the impression that only high-flying white collar professionals could possibly succeed as school governors. I saw a tweet recently from a potential parent governor who was worried that the other candidates were all going to be “captains of industry”.
There is a danger that when schools list desired skills like accountancy, human resources and data analysis that they make school governance sound like it is for people with glittering CVs and six-figure salaries only and us mere mortals should not apply. That is not the case!
At what stage should we request references?
Keeping Children Safe in Education explains that for job applicants, seeking references before interview allows “concerns raised to be explored further with the referee and taken up with the candidate at interview”.
This logic could also apply to volunteer roles, but either way the references should be received before the board actually vote on the appointment so that an informed decision can be made.
“It is good practice for schools to take up references before confirming their decision to appoint you so do be prepared to provide these if requested.”
Keeping Children Safe In Education just refers to seeking “referees” for volunteers but does not specify an exact number.
The National Society for the Prevention of Cruelty to Children (NSPCC) offer guidance on safer recruitment procedures for recruiting staff and volunteers who have contact with children. They suggest “at least two” references are sought and this is the norm for job applications as well.
Governors will usually only have contact with children under supervised conditions, but schools could choose to follow this advice for governance roles if they wish.
“You should ask applicants to provide the details of at least two referees and check references as part of your vetting checks.”
Must parent governors be nominated by two parents?
Volunteers for staff governor can simply nominate themselves, but some local authorities say that parent governors must be nominated by two fellow parents in order to stand for election. (This is sometimes called “proposing and seconding” a nomination.)
This is in effect asking for two references, because the candidate must find two parents to support their candidacy.
I’m a bit dubious about this, particularly because the law for maintained schools says you cannot set a minimum number of votes needed to be elected. If the parent can only stand if two people support them, isn’t that close to setting a minimum of two votes?
“The appropriate authority must make all the necessary arrangements for the election of parent governors.
“The power conferred by paragraph 4 does not include power to impose any requirements as to the minimum number of votes required to be cast for a candidate to be elected.”
Incidentally, the guidance for Welsh parent governors clearly states that schools cannot insist that parents have two nominators. This guidance does not apply to English schools, but the law on parent governor elections in Wales is very similar to the law for maintained schools in England.
“It cannot be insisted upon that the person is nominated and seconded by other parents.”
Asking for two nominators does seem to be what some LAs recommend in maintained schools though, so check your local LA guidance for details. (Academies should check the election rules set by their own trust.)
School employees can serve as governors at their own school, but there are limits on the number of employees who can sit on the governing body. There are also restrictions on the types of governor a school employee can be.
This page explains the rules for employees who become governors at the school where they work. (School staff are also allowed to govern at a different school and this is actively encouraged by the National Governance Association.)
co-opted governors (but only within the limits explained below)
parent governors (but only if they work for the school for 500 hours per year or less), and
foundation governors (if the diocese or foundation body allow it).
Maintained school employees cannot be:
the local authority governor
partnership governors.
The 500 hours rule for parent governors is explained in a separate article on parent governors who work for the school. There is also a place on the governing body reserved for the headteacher, which cannot be taken by any other employee if the headteacher resigns as a governor.
” A person is disqualified from election or appointment as a parent governor of a school if the person…is paid to work at the school for more than 500 hours in any twelve consecutive months.
“A person is disqualified from appointment as a local authority governor if the person is eligible to be a staff governor of the school.
“A person is disqualified from nomination or appointment as a partnership governor of a school if the person is…eligible to be a staff governor of the school.”
How many co-opted governors can be school employees?
In maintained schools there is a limit to the number of co-opted governors who can be employed by the school.
The number of co-opted governors who are school employees must not exceed one third of the total board when added to the staff governor and the headteacher.
“The total number of co-opted governors who are also eligible to be elected as staff governors, when counted with the staff governor and the head teacher, must not exceed one third of the total membership of the governing body.”
So if you have nine governors in total on your board you can only have one co-opted governor, because that co-opted governor plus the head plus the staff governor equals three out of nine, so one-third of the board exactly.
The rule is not simply that a maximum of one third of governors overall can be employed by the school. It is only the number of co-opted governors who are employed by the school that are added to the head and staff governor, not governors from any other category.
Co-opted Governor Calculations For Maintained Schools
If you have seven to 11 total governors you can have only one co-opted school employee.
If you have 12 to 14 total governors you can have two co-opted school employees.
If you have 15 to 17 total governors you can have three co-opted school employees.
If you have 18 to 20 total governors you can have four co-opted school employees.
Here are some more detailed examples to show what happens in specific situations.
Example one – the board has 12 governors overall, with two co-opted governors who are school employees. The headteacher, plus the staff governor, plus two co-opted school employees equals four out of 12, so one third exactly. This school cannot appoint another employee as a co-opted governor.
However, if the school advertises for a parent governor and one of their lunchtime supervisors wins the election that is fine. The total number of governors who are employees is now greater than a third, but the law permits that (and parent governors can work for the school within the 500 hours limit).
Example two – the board has 15 governors overall, with three co-opted governors who are school employees. No more co-opted employees can be appointed. However, it is a faith school and the diocese can appoint a foundation governor who is a school employee if they wish.
What if we have vacancies on the board?
Ignore vacancies when making these calculations – it is the total number of governors in your constitution that count, so the total number of positions shown on your instrument of government.
Say you had 12 governors in total, including two co-opted governors who are employed by the school. Remember that these two governors are added to the head and the staff governor in this sum.
Your LA governor resigns leaving you with 11 governors in total and one vacancy, but the board does not have to remove one of its co-opted governors who are school employees, even though 4/11 is more than one-third.
(If the board did have to include vacancies when making these calculations they would immediately be able to reinstate the co-opted employee as soon as a new LA governor was appointed. But would then have to remove the co-opted employee again if the new LA governor resigned…in other words, the rule wouldn’t work in practice.)
Having said that, boards should always try to fill vacancies and keep an eye on situations where the board has become staff-heavy, but they don’t have to immediately jettison a co-opted employee if a vacancy arises.
What if someone is paid by the school but not employed?
The law restricts the number of co-opted governors who are “also eligible to be elected as staff governors”. A person is eligible to be a staff governor if they are employed by either the governing body itself or the local authority under a contract.
Therefore if someone does not have a contract at the school, perhaps providing a service to the school and invoicing them or working as a self-employed flute teacher for example, they do not need to be counted in the one-third rule.
“In these Regulations “staff governor” means a person who—
(a) is elected in accordance with Schedule 2 as a governor by persons who are employed by either the governing body or the local authority under a contract of employment providing for those persons to work at the school, and
Yes. There are no legal limits on the number of associate members who are school employees, although all associate members should be appointed for their skills.
Boards should also try to maintain a decent balance between different stakeholders: school employees, parents and members of the community.
Rules For Academies
The Academy Trust Handbook recommends that the only trust employee to serve as a trustee is the senior executive leader, so the CEO or principal. The Handbook says that no other employees should be trustees.
“Any newly appointed senior executive leader can only be a trustee if the members decide to appoint them as such, the senior executive leader agrees and the trust’s articles permit it. No other employees should serve as trustees.”
However, many academies do have staff trustees, so check your own articles to see how many staff trustees are allowed.
The current model articles of association allow academy trust employees to be trustees as long as the total number of trust employees does not exceed one third of the total board.
“The total number of trustees [including the [chief executive officer]/[principal] if they so choose to act as trustee who are employees of the academy trust shall not exceed one third of the total number of trustees.”
The model articles also specify that academy employees cannot be appointed as co-opted trustees if this would result in more than one third of trustees in total being employees.
“The trustees may not co-opt an employee of the academy trust as a co-opted trustee if thereby the number of trustees who are employees of the academy trust would exceed one third of the total number of trustees [including the [chief executive officer]/[principal] to the extent they are a trustee].”
The rules for local governing bodies are set by each academy trust, so check the terms of reference for a local board to see whether academy employees can join. The LGB may adopt a similar “one-third only” rule to the total number of local governors who can be trust employees.
There is no specific requirement in the UK General Data Protection Regulation (UK GDPR) that means governors must use school email addresses instead of their personal email accounts. (UK GDPR is just the new name for GDPR after Brexit.)
However, it is usually good practice for governors to use a school email address. One exception to this is when using a service like GovernorHub, which I discuss below.
Here is the advice from Warwickshire local authority, who strongly recommend giving school email accounts to all governors and clerks.
“GDPR does not specifically require governors to use a school email account when communicating on governing board matters.
“However, the GDPR does mean governors/clerks should be doing everything in their power to prevent a breach of personal data. This means the use of secure school email accounts by all governors/clerks is strongly advised.”
The demands of GDPR apply to both maintained schools and academies, so this advice also applies to academy trustees and local governors. The law firm Browne Jacobson agree that it is sensible for governors to use school emails because they discuss sensitive topics that could include personal data.
“That would be good practice, yes. From a data protection viewpoint, it is only the security of personal information that would be of interest to the Information Commissioner’s Office (ICO), but given the sensitive nature of governor email conversations and minutes, it is sensible for all email traffic to come from school email addresses.”
Firstly, if all governors use a school email address the school can control which email provider is used (eg: gmail, outlook etc) to ensure they choose a reputable, secure service.
Keeping personal and school emails separate also helps governors keep their address books and contacts separate, reducing the chances of accidentally emailing confidential information to someone from outside the school. It also ensures that governors do not use email accounts they may share with family members.
“As a governor, the personal data you send over email must be kept secure. Using a secure school email address will help you to meet the GDPR requirement to prevent a data breach and respond to subject access requests quickly.“
If a subject access request (SAR) or freedom of information request is received school email accounts can be searched easily, without asking governors to trawl though their private account.
“Responding to a SAR will involve carrying out extensive searches for the requester’s personal data and in many cases this will involve searching emails.
“If you know that staff and governors use email addresses which do not belong to the school for school work reasons, and you have good reason to believe that the requester’s personal data might be held on a non-school email account, then you are obliged to consider the contents of these email accounts when responding to the SAR.”
Using school accounts also ensures the governing body has access to the emails if the governor resigns, is removed from the board or is unwell. SARs must be responded to within one calendar month.
Many schools set up permanent email addresses like [email protected] that can be passed on to the new chair of governors. This avoids data being inadvertently sent to chairs or clerks who have left the school and saves time because the new chair does not have to register anew for services like The Key, the National Governance Association or the school intranet.
Do we need school email addresses if we use GovernorHub?
Probably not, no. GovernorHub is a paid service that lets governing bodies store all their agendas, minutes and documents online, as well as providing a noticeboard to allow governors to communicate.
GovernorHub say that because their system eliminates the need for governors to send email attachments and all data is stored securely in their encypted database, it doesn’t matter whether governors use personal email addresses or not.
“There is no mandate which says governors must have school email addresses – although many schools do provide one for governors.
“As GovernorHub is a secure system, governors and schools can use any email address to login. All of your documents are kept securely in the encrypted GovernorHub database and the email notifications only contain links to the documents, which will only work for authorised users on the board.
“Therefore as long as you refrain from putting personal data in the body text of the noticeboard posts, then it doesn’t matter what email addresses the governors and headteacher are using, because they are not receiving emails which contain personal data.
“If a board is using GovernorHub then the GDPR benefits of using school-specific email addresses are minimal. GovernorHub security remains strong no matter where the email notifications end up.”
In fact, if all governing body documents are stored inside GovernorHub then the governor’s email address is only being used as a username to login to the website.
They are not storing any documents inside their own email account or on the servers of their email provider and they are not sending documents in attachments. The only emails they receive contain links to their password-protected storage on GovernorHub.
Governors and clerks should still use a strong password to login to GovernorHub of course, but whether they use a personal or school email address to log in really makes no difference.
Does GDPR still apply after Brexit?
Yes. The original regulations came from EU law. However, the UK implemented GDPR through the Data Protection Act 2018 and this Act is still in force. Our version of GDPR is now known as “UK GDPR”.
Both maintained schools and academies must follow the UK GDPR because they are public authorities that process personal data.
“The EU GDPR is an EU Regulation and it no longer applies to the UK. The provisions of the EU GDPR have been incorporated directly into UK law as the UK GDPR.
“In practice, there is little change to the core data protection principles, rights and obligations.“
You can see the amended text of UK GDPR in a document called the GDPR Keeling Schedule. A Keeling Schedule is an unofficial record of the amendments made to a law. Unfortunately there is no official copy of UK GDPR to be found yet on legislation.gov.uk.
A Quick Guide to UK GDPR
The purpose of UK GDPR is to protect personal data. This means any information which could directly or indirectly identify a living person, including information that could identify you online.
What Is Personal Data?
Personal data could include:
your name
an ID number, eg: a national insurance or NHS number
your address or location
genetic data (eg: a fingerprint)
ways to identify you online such as an IP address or cookies
data from a special category which is more sensitive, eg: medical records, data on ethnic background, sexual orientation or religion.
The regulations cover all personal data collected by schools, so that includes data on staff, volunteers, pupils, parents and governors.
Seven Key Principles Of GDPR
Personal data must be processed in a way that is lawful, fair and transparent.
The purposes of processing must be specified, explicit and legitimate.
Data must be adequate, relevant and not excessive.
Data must be accurate and kept up to date.
Data must be kept for no longer than is necessary.
Data must be processed in a secure manner.
Accountability. (Data controllers and processors are responsible for the data they hold.)
Six Lawful Reasons To Process Data
A person has given consent for the processing of their personal data for one or more specific purposes.
Processing is necessary under a contract involving that person.
Processing is necessary to comply with the law.
Processing is necessary in order to protect the vital interests of that person or someone else.
Processing is necessary in the public interest or in the exercise of official authority.
Processing is necessary for the purposes of the legitimate interests of the controller or a third party.
People have the right to request a copy of the personal data schools hold on them. This right applies in both maintained schools and academies due to the Data Protection Act 2018 and UK General Data Protection Regulation (UK GDPR).
Requests for personal data are called subject access requests because under UK GDPR each person is called a data subject. They may also be known as DSARs, for data subject access request. (UK GDPR is the new name for GDPR after Brexit.)
Subject access, freedom of information or school file request?
Subject access requests are often confused with other rights to request information from schools.
A subject access request lets you see personal data.
A request for a child’s school file (in maintained schools only) lets parents see educational records.
Below is a summary of the difference between subject access requests (SARs), freedom of information (FOI) requests and requests to see a child’s school file.
SAR
FOI
School File (Maintained Schools Only)
What info can be requested?
Personal data
General info held by public authorities
A pupil’s educational records
Usual response time?
One calendar month
20 school days
15 school days
Can deadline be extended?
Only for complex requests or multiple requests from one person.
Only to consider the public interest test.
No
Can we charge a fee?
Only if request is “manifestly unfounded or excessive” or is asking for an extra copy.
Yes, to cover costs like printing or postage. (Can charge more if it will cost the school over £450 to produce.)
No, if parent just wants to see the record. Yes, if they want a copy.
Must the request be in writing?
No
Yes
Yes
Who can submit a subject access request?
Anyone whose personal data is held by the school. This could be pupils, parents, school employees, volunteers, governors or anyone who used to be in one of these categories. Usually SARs should be sent to the school’s data protection officer.
What data can be requested?
Any personal data that relates to a living, identifiable person can be requested. The DfE advise that personal data in schools includes (but is not limited to) the following:
contact information about pupils, students, learners, staff and carers
health information
details about recipients of pupil premium
employee references
safeguarding information about an individual
passport information, if planning trips to the EU
pupil exam references and results.
When someone submits an SAR they may specify exactly what kind of data they want, eg: please supply a copy of any health records you hold on me.
If they submit a much broader request, perhaps one that asks for any and all personal data the school holds, staff must make reasonable efforts to search through all the school records. This includes:
emails (including emails moved to a trash folder, as well as any archived emails)
Word documents
spreadsheets
databases
record systems
CCTV
USB sticks or CDs
paper records in filing systems.
Can personal data from governing body meetings be requested?
Yes. Any personal data in confidential governing body documents like minutes and papers from meetings is covered by UK GDPR. (Any minutes and papers the governing body have not marked as confidential are public documents anyway and must be given to anyone who asks for them.)
However, in most circumstances there should be little or no personal data in governor paperwork because of the strategic role of governors. They rarely talk about individual children and personal data such as salaries of staff should be anonymised so specific employees cannot be identified.
How long does a school have to respond to a subject access request?
The school must respond to a subject access request within one calendar month, but your response may be either to send the actual data or to tell someone you need more time, depending on the nature of the request.
For straightforward requests you must provide the requested data with one month.
For complex or multiple requests where you need to extend the deadline you must tell the requester you are extending the deadline by two further months, giving you three months in total to send the data.
“The controller shall provide information on action taken on a request under Articles 15 to 22 to the data subject without undue delay and in any event within one month of receipt of the request.
“That period may be extended by two further months where necessary, taking into account the complexity and number of the requests.
“The controller shall inform the data subject of any such extension within one month of receipt of the request, together with the reasons for the delay.”
If the school holds a large amount of data you can ask the requester to specify exactly what they wish to receive. The clock stops until the clarification is received. Here is the advice from the Information Commissioner’s Office (ICO).
“If you process a large amount of information about an individual, you may ask them to specify the information or processing activities their request relates to before responding to the request.
“The time limit for responding to the request is paused until you receive clarification. This is referred to as ‘stopping the clock’.”
The DfE advise that asking for clarification is good practice because parents may well be looking for specific information that can be retrieved quickly if the school knows exactly where to look.
“Have a conversation to see if the requestor is willing to clarify the scope of the data requested. A parent may only be interested in one small part of the data record and would far rather get a quick response focussed on that scope rather than await a full SAR response.”
The clock also stops if you cannot work out whether someone intends to make a subject access request or not.
“If you receive a request where it is genuinely unclear whether an individual is making a SAR, then the time limit does not begin until you have clarified whether the individual is making a SAR, and what personal data they are requesting.
“In such cases, you are expected to contact the individual as quickly as possible (eg: by phone or email where this is appropriate).”
The one calendar month time limit starts from the day you receive the request, unless you are either a) charging a fee or b) asking for a clarification of the request, in which case the time limit starts from the day the fee or clarification is received.
If the next month is shorter than the current month the time limit runs to the last day of the next month. So if a request is received on 31 March the deadline is 30 April.
If the deadline falls on a weekend or public holiday you can add one extra day to the time period, eg: a request received on 2 April is due on 2 May (Mayday bank holiday) but should be answered by 3 May.
To avoid having to worry about months of differing length and bank holidays you could set a deadline of 28 days for all requests rather than one calendar month.
“You should calculate the time limit from the day you receive the request, fee or other requested information (whether it is a working day or not) until the corresponding calendar date in the next month.
“If this is not possible because the following month is shorter (and there is no corresponding calendar date), the date for response is the last day of the following month.
“If the corresponding date falls on a weekend or a public holiday, you have until the next working day to respond.”
What if we receive a subject access request in school holidays?
Deadlines for subject access requests do not distinguish between school days and school holidays or INSET days. If the school receives a request on 20 July it has until 20 August to respond.
“There are no special rules which allow you to extend the time period for dealing with a SAR you receive it during school holidays. Regardless of whether a school is closed, if you receive a SAR then you have the normal time period to comply.”
However, in their Data Protection Toolkit For Schools the DfE advise that although schools must follow the deadlines, they can tell parents that they may find this more difficult in the holidays.
“Include your willingness to help data subjects access their data in your privacy notice. Explain to parents that most of the year you aim to do this in a timely manner, but during school holidays this may become more difficult.”
Can we ask for subject access requests to be submitted on a specific form?
Yes, you can ask, but not insist. The ICO recommend providing a form because it helps to collect the necessary information and avoid asking for clarification.
I’ve produced a template school subject access request form which you can download below.
Can we reject a request that is not submitted via our form?
No. SARs submitted through other means are equally valid, so you cannot insist that your own form is used.
“It is good practice to provide a SAR form on the organisation’s website, although you must make it clear that completion of a SAR form is not compulsory.
“A form can act as a guide for requesters and staff and help to ensure that all relevant information is captured at the outset. This helps to minimise the need to ask for further clarification, ID or proof of consent from the requester further into the process.”
Note that SARs can be submitted via social media or email and even verbal requests must be responded to.
“However, you should note that a SAR is equally valid whether an individual submits it to you by letter, email or verbally. You must therefore make it clear that it is not compulsory to use the form and simply invite individuals to do so.”
If a verbal request is received the school can ask for a form to be completed to help them understand and respond to the request, but if the form is not filled in they must still respond.
Should we ask for ID?
You can ask for ID but whether you should depends on who is making the request.
If you are sure of their identify, for example they are a previous employee or a parent who regularly picks up their child and is known to the staff, you should not ask for ID.
If their identity is not obvious or there is a risk that they could be confused with someone else you should ask for ID.
“To avoid personal data about one individual being sent to another, either accidentally or as a result of deception, you need to be satisfied that you know the identity of the requester (or the person the request is made on behalf of) and the data you hold relates to the individual in question.
“The key point is that you must be reasonable and proportionate about what you ask for. You should not request more information if the requester’s identity is obvious to you. This is particularly the case when you have an ongoing relationship with the individual.”
UK GDPR states that when a request has come in electronically the data should be sent electronically “where possible”, unless the person has asked for a different format of reply. For non-electronic requests the school can decide how to send data.
Can we refuse to release data?
Yes. You can refuse the request in one of three situations:
an exemption applies
the request is manifestly unfounded
the request is manifestly excessive.
“Can we refuse to comply with a request? Yes.
“If an exemption applies, you can refuse to comply with a SAR (wholly or partly). Not all exemptions apply in the same way and you should look at each exemption carefully to see how it applies to a particular request.
“You can also refuse to comply with a SAR if it is manifestly unfounded or manifestly excessive.”
The exemptions that are most likely to apply in schools involve requests where disclosing the data might:
cause serious harm to the pupil (either their physical or mental health) or another person
reveal that a child is at risk of abuse, where that revelation would not be in the best interests of the child
reveal information in adoption papers or parental order records
involve court proceedings
include data on another person (a “third party”), although in this case the extra data could be redacted or removed before disclosure.
Detailed guidance on applying exemptions is available on the ICO website.
What does manifestly unfounded mean?
Broadly speaking manifestly unfounded means someone is obviously mis-using their right of access and does not genuinely wish to access their data. For example, if a parent clashed with the headteacher and then submitted weekly SARs solely to make the head’s life harder.
It could also be manifestly unfounded if someone submitted a request and then offered to withdraw it in return for a favour, or used the system for malicious purposes to harass the school or an employee.
“A request may be manifestly unfounded if:
– the individual clearly has no intention to exercise their right of access. For example an individual makes a request, but then offers to withdraw it in return for some form of benefit from the organisation; or
– the request is malicious in intent and is being used to harass an organisation with no real purpose other than to cause disruption. For example, the individual:
– explicitly states, in the request itself or in other communications, that they intend to cause disruption;
– makes unsubstantiated accusations against you or specific employees which are clearly prompted by malice;
– targets a particular employee against whom they have some personal grudge;
– or systematically sends different requests to you as part of a campaign, eg once a week, with the intention of causing disruption.”
A request would be manifestly excessive if it is obviously unreasonable, in light of the time or cost it would take to supply the data. This doesn’t just mean someone has requested a lot of information, but it might mean that you have limited staff resources and it is not reasonable to spend so much time finding the info.
What do we include in the refusal letter?
If you do decide to refuse the request you must:
tell the requester within one month
include your reasoning
let them know they can complain to the ICO
let them know they can seek a “judicial remedy” (take the school to court).
“If the controller does not take action on the request of the data subject, the controller shall inform the data subject without delay and at the latest within one month of receipt of the request of the reasons for not taking action and on the possibility of lodging a complaint with the Commissioner and seeking a judicial remedy.”
No, in the majority of cases. Schools are only allowed to charge a “reasonable” fee for admin costs if the request is manifestly unfounded or excessive or someone has already received one copy of their data and now wants an extra copy. The fee could cover photocopying costs and staff time.
“In most cases, you cannot charge a fee to comply with a SAR. However, you can charge a ‘reasonable fee’ for the administrative costs of complying with a request if it is manifestly unfounded or excessive or an individual requests further copies of their data following a request.”
The right to submit an SAR belongs to the individual data subject, so the right to see a child’s data belong to the child, not the parent. However, if the child is not able to act on their own behalf or gives their consent the parent can submit a request.
“Unlike the parent’s right of access to their child’s educational record, it is the pupil’s right to make a SAR. Parents can only submit a SAR for information about their child if the child is not competent to act on their own behalf or has given their consent.”
As a rule of thumb, the ICO advises that children under 12 are probably not mature enough to submit a subject access request themselves, whereas children of 12 or over probably are. They say for children under 12 it is “usually appropriate” to accept subject access requests from their parents.
“In Scotland, a person aged 12 years or over is presumed to be of sufficient age and maturity to be able to exercise their right of access, unless the contrary is shown. This does not apply in England, Wales or Northern Ireland but would be a reasonable starting point.
“If you are satisfied that the child is not competent and the request is from a person with parental responsibility for the child, then it is usually appropriate to let the holder of parental responsibility exercise the child’s rights on their behalf.”
Yes. The school must “protect the rights and freedoms” of other people when responding to an SAR, so they must not release the personal data of others.
Redacting may include blanking out information with a blacker marker pen or removing it using software. A full record of the redactions should be kept in case you are asked to review the decision.
If records contain data on third parties the school must redact the extra data. For example, if emails talking about a child also name and discuss two other children, the parent must only see the information on their own child. Schools should not usually redact teacher’s names, however.
“If an educational record contains personal data relating to someone other than the requester (such as a family member), you must consider the rules about third-party data before disclosing it to the requester.
“However, you should not normally withhold information that identifies a teacher.”
The ICO recommend the National Archives Redaction Toolkit (.pdf) which explains how to remove information from paper and electronic records. The appendices of this toolkit provide practical suggestions such as how to deal with Microsoft Office files that contain metadata and tracked changes (it is safer to send plain text files) and how to edit pdf files.
Can someone complain if they are unhappy with our response?
Yes. Article 15 of UK GDPR gives people “the right to lodge a complaint” with the ICO (although the ICO asks people to complain directly to the school first).
The ICO will not punish a school or give compensation, but they may advise the school on how to proceed. People also have the right to go to court.
Good Practice Tips For Dealing With SARs In Schools
In 2020 the ICO reviewed how eight schools handled SARs. Their report (.pdf) gives advice on good practice to follow and poor practice to avoid.
Good practice for schools includes:
having one specific person such as the data protection officer (DPO) deal with SARs
logging SARs in a central document which records the due date of each request, a brief explanation of any information withheld and the reasoning for an exemption or exception
using an information asset register or data map to list all types of data held and its location
sending a template acknowledgement letter when an SAR is received, explaining the deadline for the data to be sent
documenting the process for redactions.
Poor practice includes:
over a third of schools did not action SARs in the summer holidays, incorrectly delaying them until the new term
half of schools only recognised written requests
half of schools did not have a documented process for verifying ID
some schools did not explain how to make an SAR on their website
some schools did not tell people they had the right to complain to the ICO under Article 15(1)(f) of UK GDPR.
What if a parent asks to see their child’s school file?
This right is not connected to subject access requests. Notice that the Pupil Information Regulations give parents the right to see the school file, whereas for subject access requests the right belongs to the child.
According to the ICO the educational record would cover “information such as the records of the pupil’s academic achievements as well as correspondence from teachers, local education authority employees and educational psychologists engaged by the school’s governing body”.
Parents must make a written request to see their child’s school file. They must then be shown the file free of charge. However, they ask for a copy of the file the school can charge a fee that covers the cost of supplying it.
“(2) Subject to paragraph (4), the governing body shall make a pupil’s educational record available for inspection by the parent, free of charge, within fifteen school days of receipt of the parent’s written request for access to that record.
“(3) Subject to paragraph (4), the governing body shall provide a copy of a pupil’s educational record to the parent, on payment of such fee (not exceeding the cost of supply), if any, as the governing body may prescribe, within fifteen school days of receipt of the parent’s written request for a copy of that record.
“(4) When complying with a request under paragraph (2) or paragraph (3), a governing body shall not make available for inspection or provide a copy of any information—
(a) which they could not lawfully disclose to the pupil himself under the GDPR; or
(b)in relation to which the pupil himself would have no right of access under the GDPR.”
This page explains the rights and responsibilities of associate members and how they are different from governors.
A maintained school can appoint associate members to sit on committees. Associate members are not governors but they do have the right to attend full governing body meetings.
“‘Associate member’ means a person who is appointed by the governing body as a member of any committee established by them but who is not a governor.”
Associate members can bring specific skills to the governing body or be appointed to tackle a particular problem or project.
“Associate members should be appointed because of the specific expertise and experience they can contribute to the effective governance and success of the school.
“This can help to address specific gaps identified in the skills of governing body members, and/or help the governing body respond to particular challenges that they may be facing.”
Advice on this page applies to associate members in maintained schools.
You may have heard the term “associate governor”, but in a maintained school this role does not exist. They are either a governor or an associate member, they are not an associate governor.
Below is a summary of the main differences between governors and associate members in maintained schools.
Governors
Associate Members
Can be chair or vice-chair of full governing body
Yes (as long as not school employee)
No
Count towards full board quorum
Yes
No
Can vote at full board
Yes
No
Can be chair or vice-chair of a committee
Yes
Yes
Count towards committee quorum
Yes, if they are a member of that committee
No
Can vote on committees
Yes, if they are a member of that committee
Only if: a) they are given voting rights by full governing body, and b) majority of committee members present are governors, not associate members, and c) they are aged over 18
Can use a casting vote if they are the committee chair
Yes
No
Can be excluded from a meeting by the governing body if an individual staff member or pupil is discussed
Why appoint associate members rather than governors?
There are a few reasons why the board may wish to make a volunteer an associate member rather than a governor:
there are no governor vacancies in your instrument of government but a willing volunteer is available
a volunteer has skills that would benefit a particular committee, for example an accountant who could sit on the finance committee but may not have the time to attend full board meetings
the board wishes to see how a volunteer gets on in a role with less responsibility before “promoting” them to a governor role
a volunteer is under 18 and so cannot be a governor. Associate members are allowed to be under 18 and can be pupils at that school.
What are the rights of associate members?
The law gives associate members the right to attend meetings of the full governing body and committee meetings when they have been appointed to that particular committee.
(The full board or a committee could also invite them to attend committee meetings even if they are not on that specific committee, but they don’t have an automatic right to attend.)
The law also says that associate members may be asked to leave for part of a meeting if an individual school employee or pupil is being discussed. This rule applies to both full board meeting and committee meetings. (The quote below refers to the governing body excluding associates from full board meetings, but a later section in the law applies this rule to committee meetings too.)
“The governing body may exclude an associate member from any part of its meeting which the associate member is otherwise entitled to attend when the business under consideration concerns an individual member of staff or pupil.”
Associate members also have the right to receive the agendas, minutes and papers for full board meetings and for any committees they sit on.
“The clerk of the governing body must give written notice of the meeting, a copy of the agenda for the meeting and any reports or other papers to be considered at the meeting at least seven clear days in advance to—
(a) each governor;
(b) the head teacher (whether or not that person is a governor);
To appoint an associate member hold a vote at a meeting of the full governing body, asking the candidate to leave the room during the vote. If governors vote in favour their term of office starts from the date of that meeting.
To reappoint an associate member at the end of their term of office simply hold another vote at a full governing body meeting.
How many associate members can we have?
In theory, as many as you like. There are no limits on the number of associate members you can appoint, although they should all be able to make a useful contribution.
Associate members are not listed on the instrument of government so the board can increase or decrease the number of associates without changing the instrument.
In practice, if you have a more than say two or three associates you may be asked to explain how they support the work of the board or why they are not serving as governors (if governor vacancies exist at the school).
There is no minimum number of associates you must have as there is no requirement to have any associate members at all.
Can a parent or school employee be an associate member?
Yes. Associate members can be parents, school employees, anyone who is unconnected with the school or even pupils at that school, because associates can be under 18.
“The definition of associate member is wide. Registered pupils and staff at the school and people who want to contribute specifically on issues related to their area of expertise (for instance, finance) can be appointed as associate members.”
There are no rules that limit the number of associates who can come from particular stakeholder groups, for example the total number of associate members who can be school employees. (In contrast there are legal rules which control who can be a particular type of governor.)
However, be aware of the balance of different stakeholders to ensure there are not too many people involved from one stakeholder group.
If a school employee is an associate member they must remember that their role is to support the work of the governing body, not to answer questions from governors or help the headteacher explain or defend the decisions of senior leaders.
It is relatively common to find schools where several senior employees act as associate members, perhaps because the school believes they must be associates in order to attend meetings, but in reality governors can invite anyone they like to meetings.
The business manager, deputy head or any other employee can be given a standing invitation to attend meetings without being appointed as a governor or associate member.
What is the term of office for associate members?
The default term is four years, but the board can assign any term between one and four years. At the end of each term the associate can be reappointed and there is no overall limit on the number of years an associate member can serve.
“An associate member may hold office for a period of four years, or such shorter period (not being less than one year) as may be determined by the governing body at the date of the appointment.
“Nothing in this regulation prevents an associate member from being reappointed at the expiry of the associate member’s term of office.”
They cannot be suspended as the process for suspensions only applies to governors. However, they can be removed at any time via a vote at a full governing body meeting.
Apart from the vote itself there is no formal process that needs to be followed when removing associate members, but the board may wish to follow the same process for removing governors to ensure their procedures are fair.
For example, they could give the associate member the opportunity to make a statement at a meeting in their defence.
“An associate member may be removed from office by the governing body at any time.”
However, associates can chair committees. If they are elected as a committee chair they are not allowed a casting vote to break a deadlock if the vote is tied (unlike governors who chair committees, who do get a casting vote).
Can associate members vote?
Associate members never have a vote at full board meetings, but they can be given voting rights on committees if the governing body approves.
The voting rules are a little complicated so are covered in full in a separate article, but the basic idea is that associates can vote on a committee as long as:
they have been given voting rights on that committee by the full board
the majority of committee members present are governors (not associate members) and
the associate member is aged over 18.
Must associate members declare their business interests?
Each associate member must declare anything could mean they might benefit from that role, for example if they work for a cleaning company that could be hired by the school.
They must also declare any governance roles they hold at another school or college and any relationship they have with a school employee, governor or another associate member.
All associates must withdraw from a meeting (leave the room) if a vote is held where they have a conflict of interest – for example, if they could gain financially from the outcome of the vote.
Legally no, as the law only refers to enhanced disclosure and barring service (DBS) checks for governors.
“Where a governor is elected or appointed on or after 1st April 2016 and does not hold an enhanced criminal record certificate, the governing body must apply for such a certificate in respect of that governor within 21 days after his or her appointment or election.”
There is also no stipulation in Keeping Children Safe in Education that says associates must be DBS checked at all.
However, your board may wish to run enhanced DBS checks on associates anyway. It is wise to find out whether your local authority prefers enhanced DBS checks to be run.
Note that associate members are disqualified if they have certain criminal convictions, just as governors are. In fact all of the disqualification criteria apply equally to associate members except that (unlike governors) associate members are allowed to be under 18 and to be pupils at the school.
For section 128 checks the same applies, in that neither the law nor Keeping Children Safe in Education say that associate members must have section 128 checks.
However, associate members are still disqualified if they are on the section 128 list, so you may wish to run section 128 checks on all associates. Again, check what your LA advise.
Can we have associate members if we have no committees?
This is an interesting question as a strict reading of the regulations suggests the answer is no. The law says that an associate member is “a person who is appointed by the governing body as a member of any committee established by them”.
Therefore if a board uses what is called the “circle model” or sometimes a “flat” model, where it only holds full governing body meetings and no committee meetings, then technically an associate member cannot be appointed to a committee.
However, the board has the power to establish any committee that it likes, so it could set up a committee that met once a year with the sole purpose of appointing associate members to that committee. Those associates would then have the right to attend full board meetings. This sounds daft because it is, but it would be legal!
It’s also worth noting that because associates cannot vote at full board meetings there is no significant difference between someone attending full board meetings as an associate member or being invited to attend meetings as a guest.
So, I would say that strictly speaking a board cannot have associate members if it has no committees, but I would also say this is one of those areas that is not worth spending too much time worrying about! Let me know if you disagree though.
Just for your information I once posed this question to Governorline, the now defunct advice service funded by the DfE. They said that “associate members do not have to serve on a committee. OFSTED are likely to scrutinise why they are attached to the GB and their skills set must be justified”, but I haven’t seen that advice repeated by other services like the National Governance Association or The Key.
Are associate members recorded on GIAS?
No. Get Information About Schools (GIAS) is the DfE database of school governors, but there is no way to input details of associate members into the system.
The clerk should of course keep records of any associate members and their term of office dates.
Chair’s action is the chair of governor’s power to take decisions in emergencies.
It can be used in maintained schools when an urgent situation has arisen that is likely to cause serious harm if not addressed quickly and there is not enough time to call a meeting.
Academy chairs of trustees may have similar powers, but only if their trust has authorised it. The power does not appear in the current model articles of association (2021) but trusts can introduce this power if they wish.
Chair’s action is also known as the chair’s power to act. In maintained schools it is the only way that governors can make decisions between meetings, because voting by email or in advance of meetings is not allowed. (Academy trustees can make decisions between meetings via written resolution.)
Chair’s Action In Maintained Schools
In maintained schools the right to use chair’s action comes from section 8 of the Roles, Procedures and Allowances Regulations 2013.
Section 8 is called “Delegation of Functions to the Chair or Vice-Chair in Cases of Urgency”, which sums up the principle of chair’s action. In an urgent situation the chair automatically has limited delegated powers.
When can chair’s action be used?
Chair’s action can only be used if both of the following two conditions are met.
An urgent decision needs to be made and it is not “reasonably practicable” to call a meeting of the governing body or the relevant committee in time. These are powers for emergencies only.
The chair must believe that delaying the decision would likely be seriously detrimental to either the school, a pupil, the parent of a pupil or a school employee. Note that the chair must believe it is likely there would be serious harm if the decision was delayed, not just that there might be serious harm.
“The circumstances are that the chair is of the opinion that a delay in exercising the function would be likely to be seriously detrimental to the interests of—
(a) the school;
(b) any pupil at the school, or their parent; or
(c) a person who works at the school.
“‘Delay’ means delay until the earliest date on which it would be reasonably practicable for a meeting of the governing body, or of a committee to which the function in question has been delegated, to be held.”
Chairs can only use their power if a delay is likely to cause serious harm and it is not “reasonably practicable” to call a meeting quickly. There are no defined time limits in the law, so chairs need to use their judgement when deciding how quickly they could reasonably convene a meeting.
Interpretations of the wording will vary, but it surely means a decision is needed within a few days or hours. It certainly cannot mean weeks or months, particularly with the widespread use of virtual meetings that can assemble governors quickly.
What issues can be decided by chair’s action?
The law explains that chair’s action can be used to make decisions about:
any function of the board that can be delegated to an individual governor
just one issue that cannot usually be delegated to a single governor, which is pupil exclusions.
“Regulation 8: Delegation of functions to the chair or vice-chair in cases of urgency
(1) Where paragraph (2) applies, the chair may exercise—
(a) any function of the governing body which can be delegated to an individual; and
(b) any function that under regulation 19(2) cannot otherwise be delegated to an individual.
(2) The circumstances are that the chair is of the opinion that a delay in exercising the function would be likely to be seriously detrimental to the interests of—
(a) the school;
(b) any pupil at the school, or their parent; or
(c) a person who works at the school.
“19(2) Except as provided by regulation 8, the governing body may not delegate to an individual functions relating to powers conferred and duties imposed on it by or under regulations made under section 51A of the EA 2002 (exclusion of pupils).”
Boards are free to delegate a range of issues to individual governors. The issues they cannot delegate to individuals cannot be decided by chair’s action. The issues that cannot be delegated to a single governor are explained later in the article.
Chair’s Action in PRACTICE
I hesitate slightly to provide example situations where chair’s power to act can be used because each issue must be judged on its own merits.
However, a good example was provided to me by Forrest Governance who suggested it could be used to suspend a headteacher who has committed potentially seriously misconduct.
In these circumstances a decision would be needed quickly before a full investigation begins. If a serious allegation has been made or there are safeguarding concerns there could certainly be a risk of serious harm if the chair waits until a meeting is convened instead of acting decisively.
The law also gives the chair power to act alone on “exclusion of pupils”, but in reality there is only one circumstance where chair’s action can be used here. That situation is explained in DfE statutory guidance on exclusions.
If an excluded pupil is going to miss a public exam or national curriculum test and there’s no time to hold a governing body meeting, the chair can decide alone whether or not to cancel the exclusion and reinstate the pupil. This means of course that if the pupil is reinstated they can sit their exam.
“Where an exclusion would result in a pupil missing a public examination or national curriculum test, there is a further requirement for a governing board.
“It must, so far as is reasonably practicable, consider the exclusion before the date of the examination or test.
“If it is not practicable for a sufficient number of governors to consider the decision before the examination or test, the chair of governors, in the case of a maintained school may consider the exclusion alone and decide whether or not to reinstate the pupil.
“Where the chair is unable to make this consideration, then the vice-chair may do so instead.”
The Coram Children’s Legal Centre confirm that this is the only situation where a chair can make a decision regarding exclusions by themselves.
“Where an exclusion would result in a pupil missing a public examination or national curriculum test, there is a further requirement for a governing body to consider exclusion before the date of the examination or test.
“If this is not possible, the chair of governors may consider the exclusion independently and decide whether or not to reinstate the pupil. These are the only circumstances in which the chair can review an exclusion decision alone.“
If an issue cannot be delegated to a single governor it cannot be decided by chair’s action (except for the single exclusion issue described above).
There are also some issues that the governing body cannot delegate to anyone at all and must be decided by the full board. Again, the chair could not use chair’s action to make decisions on these issues.
Issues That Cannot Be Delegated To Individuals
The following five matters cannot be delegated to any single governor and therefore cannot be decided by chair’s action:
a decision to close the school
approval of the first formal budget plan of the financial year
a decision to suspend a governor
approving some statutory policies
decisions on admissions (offering or refusing a school place).
The first three of these issues (closing the school, approving the first formal budget, suspending governors) cannot be delegated to a single governor because the Roles, Procedures and Allowances Regulations 2013 do not allow it.
“The governing body may not delegate to an individual functions relating to powers and duties imposed on governing bodies by or under—
(a) section 30 of the SSFA 1998 and sections 15 and 16 of the EIA 2006 (discontinuance of maintained schools);
(b) a scheme made by the local authority under section 48(1) of the SSFA 1998, to the extent that it requires the governing body to give their approval to the first formal budget plan of the financial year; and
(c) regulation 17 (suspension of governors).
“Except as provided by regulation 8, the governing body may not delegate to an individual functions relating to powers conferred and duties imposed on it by or under regulations made under section 51A of the EA 2002 (exclusion of pupils).”
The fourth item that cannot be delegated to individual governors is the approval of some statutory policies.
Note that it’s possible to approve all non-statutory policies by chair’s action, because there is no requirement for them to be in place at all and therefore no restriction on their level of delegation.
However, the school should have a policy review schedule in place so that policies are considered and approved on a rolling basis. It would be unusual for a policy to require emergency approval.
The fifth and final item that cannot be delegated to a single governor relates to admissions. The School Admissions Code explains that no single person can make decisions to offer or refuse school places. This means that chair’s action cannot be used to admit or reject a child.
“Admission authorities must allocate places on the basis of their determined admission arrangements only, and a decision to offer or refuse admission must not be made by one individual in an admission authority.
“Where the school is its own admission authority the whole governing body, or an admissions committee established by the governing body, must make such decisions.”
The law also says there are matters that cannot be delegated ever – they must always be decided by the full governing body. This means that chair’s action cannot be used to make decisions regarding:
staffing duties from sections 35 and 36 of the Education Act 2002, unless the regulations specifically permit it.
“The governing body may not delegate functions relating to powers conferred, and the duties imposed, on governing bodies by or under the Constitution Regulations 2007 or the Constitution Regulations 2012, as the case may be, save as provided in those Regulations.
“The governing body may not delegate functions relating to powers conferred, and the duties imposed, on governing bodies by or under regulations made under sections 35 and 36 of the EA 2002 save as provided for in those regulations.”
Duties from the Constitution Regulations 2012 that can never be delegated include appointing or reappointing governors and associate members, removing governors from the board or amending the instrument of government.
Can the vice-chair use chair’s action?
Yes, if the role of chair is vacant at that time. In addition, if the vice-chair believes that the chair is “unable” to use their power before the “detriment” occurs, they can also use chair’s action in those circumstances.
For example, if you have a chair in place but they are ill the vice-chair can make the decision instead, as long as they believe the issue meets the criteria described above, ie: it is urgent and is likely to cause serious harm to the school, a pupil/parent or school employee if not addressed.
“Where it appears to the vice-chair that—
(a) the circumstances mentioned in paragraph (2) apply, and
(b) the chair (whether by reason of vacancy in the office or otherwise) would be unable to exercise the function in question before the detriment referred to in that paragraph is suffered,
the reference in paragraph (1) to the chair is to be read as if it were a reference to the vice-chair.”
If the chair (or vice-chair) uses their power to act they must report their decision to the full governing body. This should be done formally in a meeting and minuted, although the chair could also inform governors about the decision informally beforehand if they wished.
“This regulation applies where any function of the governing body has been delegated to or is otherwise exercisable by—
(a) a governor (including the chair or vice-chair);
(b) the headteacher (whether or not that person is a governor); or
(c) a committee.
“Any individual or committee to whom a function of the governing body has been delegated or that has otherwise exercised a function of the governing body, must report to the governing body in respect of any action taken or decision made with respect to the exercise of that function.”
No. It can only be used by the overall chair or vice-chair of the governing body, not any committee chairs or vice-chairs.
The purpose of chair’s action is to give one person the ability to make a quick decision to avoid harm. It would not function correctly if various different people held the same power and could all make possibly contradictory decisions.
Chair’s Action in Academies
In academies there is no automatic right to use chair’s action and there is no mention of it in the current DfE model articles of association (June 2021).
However, academy trusts can choose to add this power if they wish, so check if your trust has allowed it for your chair of trustees.
The law firm Browne Jacobson produce draft wording that academy trusts can use to introduce this power and I’ve quoted this wording below.
It is slightly different to the law for maintained schools but the key points remain: chair’s action is for urgent matters where a delay would likely be “seriously detrimental” to the interests of the trust, an academy, a pupil/parent or a member of staff.
In this wording, however, the chair can act either when an urgent matter is “brought to their attention” or where the principal/CEO gives them a written report explaining why the item qualifies for urgent attention and could not be brought to a regular meeting.
The chair also needs to take chair’s action “in consultation with the principal/CEO” in this wording. This clause does not exist in law for maintained schools, although it is difficult to imagine a chair taking an urgent decision without talking to the headteacher first, unless the decision concerned the head themselves.
Further clauses (not quoted below but available here) explain that the vice-chair can use chair’s action if the chair cannot act themselves, just as in maintained schools. They also explain that the chair can decide to call a board meeting at short notice instead of using their power to act.
A final clause states that decisions taken under chair’s action should be reported in writing to the trustees as soon as possible and the decision recorded in board minutes.
“IT IS RESOLVED THAT with immediate effect in order to facilitate the trust making urgent decisions that arise between board and committee meetings the chair (or vice chair) may use the following decision-making procedure (to be known as chair’s action):
1. Notwithstanding any provisions of the trust’s articles of association (the articles) and [scheme of delegation], if the chair is of the opinion that a matter of urgency exists [and it is not practicable to arrange a board meeting on short notice in the circumstances] either:
(i) after receiving a written report from the [principal/executive principal/CEO] which clearly states, amongst other things, why the item concerned could not be brought to a regular meeting and why it would qualify for urgent decision under this procedure; or
(ii) as a result of other information that is brought to their attention and a delay in exercising the function would likely be seriously detrimental to the interests of the trust, [the/any] academy, pupil or their parent or a person who works at the trust,
then, in consultation with the [principal/executive principal/CEO], they may exercise any function of the trust which [(i)] can be delegated to an individual under the articles, the trust’s funding agreements with the secretary of state for education (including the relevant Academy Trust Handbook) [or (ii) any function relating to the exclusion of pupils].”
If chair’s action is not already permitted in your academy trust then Browne Jacobson advise that there are two ways to adopt it. Either write it into your scheme of delegation (or other similar document) or pass a resolution of the trust board explaining when it can be used.
“If you haven’t documented an equivalent [of chair’s action] and you want to do so now, then you have two options:
1. you could incorporate suitable wording into your scheme of delegation (or other relevant documentation); or
2. you could pass a board resolution setting out the provisions for chair’s action.”
The Nolan principles are seven rules that describe how people in public office should behave and the ethical standards they should uphold. They apply to all school governors because they apply to anyone elected or appointed to public office.
A school may ask new governors to sign a form to say they will follow these seven principles, usually by incorporating them into the code of conduct.
Seven Principles of Public Life
The seven principles set out by the Nolan committee are shown below. They can also be seen on the gov.uk website here.
All rules stem from the fact that “all public office-holders are both servants of the public and stewards of public resources”. In other words, they are working on behalf of the public and spending public money.
1. Selflessness
Holders of public office should act solely in terms of the public interest.
2. Integrity
Holders of public office must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work.
They should not act or take decisions in order to gain financial or other material benefits for themselves, their family, or their friends. They must declare and resolve any interests and relationships.
3. Objectivity
Holders of public office must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias.
4. Accountability
Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this.
5. Openness
Holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for so doing.
6. Honesty
Holders of public office should be truthful.
7. Leadership
Holders of public office should exhibit these principles in their own behaviour. They should actively promote and robustly support the principles and be willing to challenge poor behaviour wherever it occurs.
Are the seven principles statutory in maintained schools?
Statutory guidance for maintained schools says that boards are advised to ask governors to agree to the Nolan principles, but it does not say schools must ask governors to agree to them.
“It is advised that governing bodies make everyone involved in governance aware of, and secure their agreement to ‘The 7 principles of public life’, as set out by Lord Nolan.”
However, be aware that although the Nolan principles themselves do not appear in the law and are not mandated by statutory guidance, many of the principles are reflected in legislation, so governors will have to follow them whether they specifically sign up to them or not.
For example, the Freedom of Information Act 2000 requires schools to release recorded information unless an exemption applies, so that reflects principle 5.
Law for maintained schools also says governors must act with “integrity, objectivity and honesty”, act in the best interests of the school and be open about decisions they make, reflecting many of the seven principles.
“In exercising their functions the governing body shall—
(a) act with integrity, objectivity and honesty and in the best interests of the school; and
(b) be open about the decisions they make and the actions they take and in particular shall be prepared to explain their decisions and actions to interested parties.”
The law also requires governors to withdraw from a vote if they have a conflict of interest so they do not gain personally from the decisions they take at school.
Are the seven principles statutory in academies?
The Academy Trust Handbook includes adherence to the seven principles of public life in its “schedule of requirements”, the list of “musts” that trusts must follow.
There is also a specific mention of the Nolan principles in the section of the Handbook that covers conflicts of interest. Academy trustees must avoid conflicts of interest and promote “integrity and openness in accordance with the seven principles of public life”.
“The board of trustees must ensure requirements for managing related party transactions are applied across the trust. The board chair and the accounting officer must ensure their capacity to control and influence does not conflict with these requirements.
“They must manage personal relationships with related parties to avoid both real and perceived conflicts of interest, promoting integrity and openness in accordance with the 7 principles of public life.”
The most common way to ask governors to agree to the Nolan principles is by including them in a code of conduct. Codes of conduct are not mandatory for school governors, but the Nolan committee stated that “all public bodies should draw up codes of conduct incorporating these principles”.
If you use the National Governance Association (NGA) code of conduct (available here) the Nolan principles are incorporated into the text, so any governor who signs the code of conduct has agreed to abide by the seven principles.
What happens if a governor breaches the principles?
The NGA code of conduct explains that a breach of the code could lead to “formal sanctions” – in other words, the board could consider suspending or removing the governor from their post.
This is also reflected in statutory guidance for maintained schools, which says that a sufficiently serious breach of the Nolan principles could be seen as “serious misconduct” and the board could consider removing that governor as a result.
“Examples which could give rise to removal are where:
(a) there have been repeated grounds for suspension;
(b) there has been serious misconduct. Governing bodies should decide what constitutes serious misconduct based on the facts of the case. However, it is expected that any actions that compromise the Nolan principles, if sufficiently serious, would be considered in scope of this reason for removal.”
Schools have a duty to release recorded information under the Freedom of Information Act 2000. This law applies to both maintained schools and academies because it covers all public authorities.
Who can make a freedom of information request?
Anyone at all. They don’t need to be connected to the school in any way and they don’t need to tell you why they want the information.
What can they ask for?
The Freedom of Information Act lets people request a wide range of recorded information held by public authorities. This means paper copies of documents, electronic files, emails, photos and video or sound files.
“Recorded information includes printed documents, computer files, letters, emails, photographs, and sound or video recordings.
The Act also applies to any draft documents, CCTV and recordings of phone conversations, as well as information that has not been created by the school itself.
For example, letters that have been sent to the school can be requested.
“It is not limited to official documents and it covers, for example, drafts, emails, notes, recordings of telephone conversations and CCTV recordings.
“Nor is it limited to information you create, so it also covers, for example, letters you receive from members of the public, although there may be a good reason not to release them.”
The Act only applies if the information has already beenrecorded. If a teacher has a verbal conversation with the headteacher but takes no notes, the teacher does not have to write an account of that conversation after the fact just because someone submits an FOI request.
“The Act does not cover information that is in someone’s head. If a member of the public asks for information, you only have to provide information you already have in recorded form.
“You do not have to create new information or find the answer to a question from staff who may happen to know it.”
Requests must be in writing. However, electronic requests are specifically allowed so email requests are valid, as are requests made through an online form or via social media such as Twitter. Requests can be sent to any member of staff and do not have to mention the Freedom of Information Act.
The person making the request must give their name and a reply address and describe the information they wish to receive.
“In this Act any reference to a “request for information” is a reference to such a request which—
(a) is in writing,
(b) states the name of the applicant and an address for correspondence, and
(c) describes the information requested.
“A request is to be treated as made in writing where the text of the request—
(a) is transmitted by electronic means,
(b) is received in legible form, and
(c) is capable of being used for subsequent reference.”
Schools must send the information within 20 school days, unless the request is received near to the summer holidays in which case the deadline can be extended to 60 working days.
“For schools, the standard time limit is 20 school days, or 60 working days if this is shorter. Working day means any day other than a Saturday, Sunday, or public holidays and bank holidays.”
If the request is confusing and you need clarification (see the next section) the 20 school days does not start until you have received that clarification.
“The time for compliance will not begin until you have received the necessary clarification to allow you to answer the request.”
You should contact the person as soon as you can to ask them what they wish to receive. Be careful not to imply that you need to know why they want the information or that they need to tell you their motives in order for the school to fulfil the request.
“If you can’t answer the request because you are not sure what is being requested, you must contact the requester as soon as possible for clarification.
“For example, you could explain what options may be available to them and ask whether any of these would adequately answer their request.”
The Freedom of Information Act 2000 says the request must “state the name of the applicant” and the Information Commissioner’s Office (ICO) advises that this does refer to someone’s real name. However, the ICO also say that normally you should not ask for proof of identity.
The exception might be if someone has used an obvious pseudonym or there is reason to think you might deny the request if you knew who they were, for example because it is a request you have already answered.
“To be valid under the Act, the request must include the requester’s real name. The Act treats all requesters alike, so you should not normally seek to verify the requester’s identity.
“However, you may decide to check their identity if it is clear they are using a pseudonym or if there are legitimate grounds for refusing their request and you suspect they are trying to avoid this happening, for example because their request is vexatious or repeated.
“Remember that a request can be made in the name of an organisation, or by one person on behalf of another, such as a solicitor on behalf of a client.”
This is also stated in the government’s FOI Code of Practice: “Applicants must provide their real name and not use a pseudonym. Pseudonymous requests are not valid requests.”
In practice, if an email arrives from [email protected] the school will not know if that is a pseudonym or not, as the usual position is that you should not verify someone’s identity. Requests are also valid if they are made on behalf of someone else or in a company name.
Remember that if someone is asking to see the personal data you hold on them that is a subject access request (SAR), not a freedom of information request. When submitting a subject access request the person does of course have to supply their real name.
Can we charge a fee?
Yes, but in most cases you can only charge to cover the costs of supplying the information, for example photocopying, printing or postage costs. You cannot usually charge for staff time used up when finding the information.
An ICO document provides a guide to fees that may be charged (.pdf). They give an example of a substantial FOI request submitted to a public authority. The authority could charge 10p per sheet for photocopying 200 pages, £10 for postage, but zero for the large amount of staff time it will take up.
Although you cannot charge for staff time, in most circumstances you can reject the request completely if it is very substantial. This is explained in the next section.
Can we refuse requests?
Yes, but only if one of four criteria are met:
fulfilling the request would cost too much or use too much time
it is “vexatious”
it is a repeat request from the same person, or
a specific exemption applies.
“You can refuse an entire request under the following circumstances:
– it would cost too much or take too much staff time to deal with the request
– the request is vexatious
– the request repeats a previous request from the same person.
“In addition, the Freedom of Information Act contains a number of exemptions that allow you to withhold information from a requester.”
So first, you can refuse a request due to cost or staff time used. The cost limit for schools is £450. A request would have to be enormous to breach that limit just through photocopying at 10p a sheet or postage costs, but it is more likely that a request could breach the limit because it would take too long for your staff to supply.
The ICO advise that staff time should be calculated at £25 per hour and 25 x 18 = 450. Therefore the cost limit for schools is 18 hours of staff time.
If a freedom of information request would take staff longer than 18 hours to respond to, you can reject the request. (Note though that you also have the option to offer to fulfil the request if the person provides written agreement that they will cover your costs.)
“The biggest cost is likely to be staff time. You should rate staff time at £25 per person per hour, regardless of who does the work, including external contractors. This means a limit of 18 staff hours.”
Second, “vexatious” requests can be refused. A vexatious request is one that is “likely to cause a disproportionate or unjustified level of disruption, irritation or distress” according to the ICO. They produce full guidance on Dealing With Vexatious Requests (.pdf).
A vexatious request might include abusive or aggressive language, accusations, place a burden on the school that is unreasonable, involve a personal grudge, be a persistent request or be a trivial request submitted just for fun.
Third, requests can be refused if they are just a repeat of a previous request from the same person.
Finally, requests can be refused if an exemption applies.
Some exemptions are absolute, which means you can refuse the request without any further consideration.
Most exemptions are qualified, which means that before deciding to withhold the info you must consider whether it would actually be in the public interest to disclose it. This is called the public interest test.
Absolute Exemptions
Section 40(1): If someone is asking for their own personal information –this would need to be treated as a subject access request instead.
Section 40(2):If the info contains the personal data of a third party -schools must comply with the UK general data protection regulation (UK GDPR) and not release personal information about others.
Section 41: If information was provided in confidence – information can be withheld if it would breach a confidence.
Qualified Exemptions
Section 22: If information is intended for future publication – if the info will be published anyway at some point in the future.
Section 28: If disclosure would (or be likely to) endanger someone’s physical or mental safety – safeguarding information might fall under this category.
Section 36: If disclosure would (or would be likely to) inhibit the free and frank exchange of views or prejudice the effective conduct of public affairs – this is an unusual exemption because it must be decided by “the reasonable opinion of a qualified person”.
The ICO provides a useful list of key questions that its staff use when investigating whether FOI law has been applied correctly which can help you decide whether the school is allowed to use a particular exemption.
Can confidential governing body minutes be requested under FOI?
Yes, although the possible exemptions listed above would apply. Maintained school governing bodies have a legal right to record some issues in confidential minutes and in academy trusts the same right is contained in their articles of association.
However, this right does not override the FOI Act, so the board cannot simply refuse to release confidential minutes in all circumstances; they must consider whether an exemption applies under FOI and if it does not the minutes must be released.
What happens after a request is refused?
If a person has had their request refused and is unhappy or believes an exemption has been applied unfairly they can write to the school within 40 working days and ask for an internal review. The review should be carried out by someone who did not respond to the original request.
“You should have in place a procedure to handle any disputes or complaints arising from the outcome or handling of a request for information.
“This procedure is known as an internal review and demonstrates a commitment to openness and transparency. Internal review requests should be made within 40 working days of the initial response.
“It is good practice for the internal review to be carried out, wherever possible, by somebody other than the person who issued the initial response.”
If the school does not review its decision or the person is still unhappy after the internal review they can complain to the Information Commissioner’s Office.
When refusing a request schools must let people know they have a right to complain to the ICO. If the ICO decides the school was in the wrong they can issue a decision notice with instructions on what you must do to correct the mistake.
This could lead to the school having to release further information or give further help to the requester, but the ICO does not dole out punishments or fines or force public bodies to pay compensation for mishandling FOI requests.
St Ralph Sherwin Catholic Multi-Academy Trust (.pdf) was asked for “a variety of information” which it refused to provide as the requests were seen as vexatious. The ICO over-ruled this for two requests and told the trust to respond to the requests within 35 days.
Townley Grammar School (.pdf) received 78 FOI requests in one day from the same person. They refused the requests because a response would have exceeded the cost limit.
The ICO ruled that the school had the right to add up all the requests when calculating the cost limit. The school had also given the person advice on how the requests could be refined. The ICO did not ask the school to take any action.
Beths Grammar School (.pdf) was asked to release info about exam grades. The school sent anonymised information with names redacted and data randomised, but refused to release a change of format as it would have identified the children and been a breach of personal data. The ICO agreed with their approach.
Example FOI Requests To Schools
You can view FOI requests at What Do They Know, a site that helps people make FOI requests and publishes the responses online.
JFS School was asked to provide minutes from governor meetings; they accepted this request and sent the minutes. However, they were also asked for “all information relating to the recent OFSTED inspection”. The school refused as they calculated that this very broad request would take much longer than 18 hours of staff time to fulfil.
All Saints’ Catholic High School was asked to provide the performance appraisal records of senior leaders. They refused because the appraisal records contained the personal data of staff.
The requester asked for appraisals to be anonymised but the school refused this request too because targets in the appraisals were linked closely to job roles and therefore staff could still be identified. However, they did provide an overview of the number of targets set and met by the senior leaders.
Aston Fields Middle School was asked about the number of fixed term and permanent exclusions, including those given to SEN children. The school refused to release the information because the low numbers of children involved meant that individual pupils might be identifiable and therefore they would be releasing personal data.
Steiner Academy Bristol was asked to provide the “OFSTED action plan”. The school accepted this request and sent out their school improvement plan (SIP), even though they had in fact already sent the SIP to the requester, which made this a repeat request.
However, the school refused to send the most current version of the SIP as they believed it could have a negative impact on the operation of the school. They relied on section 36 of the FOI Act that says info can be withheld if it “would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs”.
Tiffin School was asked to send a copy of the staff handbook. They refused the request under section 40(2) of the FOI Act as they said it contained personal data. The requestor asked again and was refused again, but then the requestor complained to the ICO and subsequently received a copy of the handbook.
