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.”
Roles, Procedures and Allowances (England) Regulations 2013
What does “urgent” mean in practice?
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).”
Roles, Procedures and Allowances (England) Regulations 2013
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.”
Exclusion From Maintained Schools, Academies and Pupil Referral Units in England
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.“
Coram Children’s Legal Centre
What issues cannot be decided by chair’s action?
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).”
Roles, Procedures and Allowances (England) Regulations 2013
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.”
School Admissions Code
Issues That Cannot Be Delegated To Anyone
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:
- duties from the Constitution Regulations 2012
- 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.”
Roles, Procedures and Allowances (England) Regulations 2013
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.”
Roles, Procedures and Allowances (England) Regulations 2013
What happens after chair’s action has been used?
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.”
Roles, Procedures and Allowances (England) Regulations 2013
Note that governing bodies always retain the power to over-rule any decisions they have delegated.
“Where the governing body has delegated functions, this does not prevent the governing body from exercising those functions.”
Roles, Procedures and Allowances (England) Regulations 2013
Can committee chairs use chair’s action?
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].”
Decision-Making Resources for Boards of Academy Trusts (.pdf file)
How can academies introduce chair’s action?
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.”
Decision-Making Resources for Boards of Academy Trusts (.pdf file)