Academy trusts may wish to change their articles of association to alter the number of trustees on the board, change the balance of trustee types, adopt new DfE model articles or make other alterations to their governance rules.
This page explains how articles of association can be changed and who needs to give their permission before the amended articles come into force.
(Maintained schools do not have articles of association but may wish to change their instrument of government.)
Must we update our articles whenever new model articles are published?
No. The DfE publish new model articles on a fairly regular basis but there is no requirement to adopt new articles whenever a new model is released.
The current model articles for mainstream academies were published in 2021 but many trusts have older articles in place.
However, the DfE say it is important for trusts to “review their articles regularly and to keep them up-to-date”.
“The model articles reflect elements of charity and company law and departmental governance policy.
“We update the model articles of association from time to time to reflect developments in these areas; it is important for trusts to review their articles regularly and to keep them up-to-date.”
Model Articles of Association (June 2021)
Over time your articles may start to conflict with the Academy Trust Handbook and best practice advise from the DfE. If that happens the trust may wish to adopt new articles.
For example, some trusts still have staff trustees in their articles despite the recommendation in the current Academy Trust Handbook that the CEO/principal is the only employee who should serve as a trustee.
How have the model articles changed over time?
I’ve listed below some requirements of the current mainstream model articles which may conflict with your own articles because the DfE recommendations have changed over the years.
The current mainstream model articles:
- say that the CEO/principal should be the only staff trustee
- set the quorum for members’ meetings at a majority of members (older articles set the quorum at just two members)
- allow virtual meetings of both members and trustees
- say that the majority of members must not also be trustees
- set a requirement for a members’ annual general meeting (this used to be optional)
- say documents can be signed electronically and references to documents “in writing” include electronic documents.
What if we want to adopt the new model articles but add our own amendments?
My understanding is that it’s difficult to get permission to make your own amendments to the model articles.
However, you could ask in advance whether the changes might be considered by contacting the Education and Skills Funding Agency (ESFA). (ESFA is just a department of the DfE.)
However, if the amendments you want to make contradict the current Academy Trust Handbook I imagine ESFA will not give permission.
Preparing To Change Your Articles of Association
Before you start the formal process to change the articles follow the steps below to prepare.
Trustees Discuss the Reasoning
Your trust board should discuss why new articles might be needed, the advantages and disadvantages of proposed changes and the impact this would have on governance.
If your trustees want to suggest changes to the DfE model articles they should produce a draft of their proposed changes to send to ESFA to see if they might be accepted.
Check Your Funding Agreement
Your trust’s funding agreement may contain wording that relates to changing the articles and whose permission you need before doing so. It’s likely that the funding agreement requires you to seek permission from ESFA.
Check If You Are Changing Your Objects
The “objects” are the charitable aims of your academy trust, found at the start of your articles. If you wish to change the trust’s objects you must seek approval from the Charity Commission, so it adds extra complexity.
In general I suspect you will not need to change the trust’s objects. They usually consist of a broad statement basically saying the trust provides education to children and hopefully you still want to do that!
Get Provisional Consent From Diocese (Church Academies Only)
If your academy trust runs any church academies you will need consent from the linked religious body named in the articles, eg: the diocese in a Church of England trust.
You should also check if your current articles of association contain article 10. If you have an article 10 this article requires you to seek permission from another party to change the articles of association, particularly in church academies.
Below is an example article 10, which says this academy trust needs written consent from the Secretary of State (which means ESFA on behalf of the Secretary of State for Education), the foundation members, the trustees and the diocese to amend their articles.
“No alteration or addition shall be made to or in the provisions of the memorandum and/or articles without the written consent of the Secretary of State and of the foundation members, the trustees and the diocesan board of education.”
Debenham High School Articles of Association (Article 10)
Get Provisional Consent From Members
For the articles to be changed your members need to pass a special resolution in favour as the final stage of the process.
A special resolution must be passed by a majority vote of at least 75%. Therefore it’s wise to to check if your members have any objections to the new articles before the formal process starts.
Procedure To Change An Academy Trust’s Articles of Association
Below is a suggested process to formally change your articles of association.
PLEASE NOTE: If you are in any doubt please seek advice from your trust’s lawyers as this is a legal process that must follow the Companies Act 2006.
1. Trustees Vote In Favour of New Articles
Send a draft of the new articles to all trustees along with the agenda for the meeting. The proposed change to the articles should be clearly listed as an agenda item.
The board of trustees must hold a vote in favour of the new articles of association at a quorate meeting, passed by the usual majority. The vote does not need to be unanimous or passed by a certain percentage of trustees.
2. Obtain Approval From Diocese or Charity Commission (If Needed)
If you are in a church trust and/or your article 10 said you needed approval from another party obtain their written approval for the proposed changes.
If you are changing the trust’s objects seek written approval from the Charity Commission.
3. Obtain Approval From ESFA
Send a copy of the new articles your trustees have approved to ESFA for their formal written approval.
4. Members Vote in Favour
If your board of trustees, ESFA and (if necessary) the diocese/other parties have all approved your new articles the final step is for your members to pass a special resolution in favour of changing the articles.
A special resolution means a majority vote of 75% or more in favour. This is a requirement of the Companies Act 2006.
“A company may amend its articles by special resolution.”
Companies Act 2006 (Section 21)
If you have just three members at the meeting this means you need all three members to vote in favour, because otherwise you only have 66% in favour or less (two out of three people or less).
This is why you should check early on that members are happy with the changes or you could be foiled by just one person!
The text of the proposed special resolution must be included in the agenda that’s sent out for the member’s meeting, together with the draft new articles. Below is some text for a special resolution you could print in the agenda.
Pursuant to the Companies Act 2006 the Members of the Company propose that the following Resolution is passed as a special Resolution. Upon acceptance of this Resolution by a 75% majority of the Company’s Members it will be passed.
SPECIAL RESOLUTION
“It is resolved that the draft articles of association attached to this Resolution be adopted as the articles of association of the Company in substitution for, and to the exclusion of, the existing articles of association.“
If your members pass the special resolution by 75% or more then the change has been agreed.
Congratulations! The new articles of association are officially in force.
5. Send New Articles and Special Resolution to Companies House and ESFA
The new articles of association and a copy of the special resolution must be sent to Companies House within 15 days of being approved by the members. This is a requirement of the Companies Act 2006.
“Where a company amends its articles it must send to the registrar a copy of the articles as amended not later than 15 days after the amendment takes effect.”
Companies Act 2006 (Section 26)
A copy of the new articles and special resolution should also be sent to ESFA.
6. Complete Forms CC02 and CC03 (If Needed)
If your old articles contained article 10 and you have now removed this article then you need to complete form CC02. It can be filed here.
If your article 10 said you needed consent from the DfE, diocese or other body to amend your articles you need to complete form CC03. It can be filed here.