Free schools explained: Is that a free-for-all ahead?

With the government announcing the progression of the first 16 free school proposals to full business case stage, the finer details of the free schools policy are coming into focus. But many people are still unclear about the exact nature of this new type of educational establishment and the private sector opportunities that they present.

So how will free schools work?
Operating like academies, free schools will be publicly funded, independent state schools with the same legal obligations as academies and subject to the same rules on admissions, special educational needs and exclusions. Again, like academies, free schools will be able to establish staff pay and conditions, change the length of the school term and day, and depart from the national curriculum. But they will tend to be brand-new schools rather than conversions of existing ones.

Who can set up a free school?
The opportunity to set up a free school is open to any “suitable” proposer, including charities, businesses, universities, educational groups, teachers and parent groups. A proposer’s suitability depends on their educational aims and objectives and their ability to meet them.

Setting up a free school can present difficulties for proposers unfamiliar with the process. To put their plans into action many will need private sector help in, for example, providing education services (such as employing school staff); offering “back office” services such as campus management and administration; and in leasing suitable premises for use by the school.

Where a free school proposer contracts out work to the private sector, a public procurement process is likely to be needed depending on the contract value. Free schools will be contracting authorities for the purposes of the public procurement regime.

Site and property issues
One of the biggest issues for free school proposers is likely to be site acquisition. Proposers will need to examine possible sites for the school, fully outlining the considered options. Again, this may provide further opportunities for private sector involvement, as many proposers won’t have the existing market knowledge. Proposers are required to set out plans for the proposed site for the new school buildings, detailing the extent of work: costings, timescales, procurement method(s), financial planning and layout are all necessary and likely to require specialist advice. Private sector involvement for any significant work is again likely to be subject to a public procurement exercise or the use of a suitable existing framework.

There has been much publicity over the possible use of office and shop premises, and the extent to which they have to be remodelled and refurbished to allow use by school groups. Given the current constraints over capital finances, any new forms of cost-effective solutions will be taken seriously. The exact detail of how any capital works are to be procured has not been resolved yet, but it is likely the school groups will play a key role.

To assist site acquisition the communities department has said guidelines to planning authorities will change to enable a presumption in favour of setting up new schools; this is controversial given the potential traffic impact on local communities.

The Department for Education has said it will extend powers to protect existing school sites to make them available for use by new schools.

Conclusion
Despite their detractors, free schools appear central to the government’s education vision. Although so far only a relatively small number of schools have reached the full business case stage, there is an opportunity for many more free schools to be set up in the future. Because of the level of expertise required in setting up a new school, especially in terms of site acquisition and conversion of premises, the involvement of the private sector will be pivotal to realising many free school projects.

With the first free schools due to open in 2011, private sector contractors will wish to ensure they are fully aware of the issues in this newly developing education sector.

Graham Burns is a director and solicitor at TPP Law. He is advising a number of groups on their free school proposals