New DfE Guidance
Schools are well adept at managing a crisis, but the Department for Education’s shock guidance issued at the end of the 2023 summer holidays to close schools affected by RAAC will be a strain for even the most able of school leadership teams.
The growing realisation of the risks associated with “Reinforced Autoclaved Aerated Concrete” has forced a review of the safety measures being put in place and the adequacy of the schools’ capital funding budget.
National Audit Office Report
The key figures identified in the National Audit Office Report on the condition of school buildings (June 2023) speak for themselves:
- 38% of school buildings that are believed to be past their estimated initial design life;
- 3,600 system-built blocks which are a cause for concern being more susceptible to deterioration;
- £5.3bn annual funding needed to mitigate the most serious risk of building failure;
- £2.3bn average annual funding allocated for school rebuilding, maintenance and repair between 2016/17 and 2022/23.
Whilst the DfE have been supporting 50 school settings to carry our urgent works under the School Rebuilding Programme, a further 104 schools, having had no support, have now been asked to close individual blocks with RAAC present. In a limited number of cases the DfE have asked that the whole school be closed. The DfE has previously identified 500 schools as being in the most urgent need of major rebuilding or refurbishment.
Schools need to understand and manage their legal responsibilities.
Responsible Body
Funding for school capital projects is directed to the “responsible body”, i.e. the body in control of the school.
For community and foundation schools, that will be the local authority, who has a statutory duty to maintain the school, delegating both revenue and capital funding to the governing body of the school from the “Dedicated Schools Grant” (DSG) and “School Condition Allocations” (SCA) provided by the DfE.
For voluntary aided schools, the responsible body is the governing body, which has a statutory responsibility for capital expenditure.
For academies, this will be the academy trust, which will be the responsible body for all academies operated by the trust. Whilst revenue funding for academies is provided directly by the DfE to the academy trust, the picture is more complicated in respect of capital funding.
Capital Funding
An academy trust of more than 5 academies with at least 3000 pupils will automatically receive SCA and, like local authorities, must then assess the need across its school estate and decide where to prioritise expenditure. A tricky task where there may be a lack of data as to condition of the buildings and a legacy of poor maintenance under either local authority control or possibly a different academy trust where an academy has been re-brokered.
For academy trusts that don’t qualify for an automatic SCA allowance, a bid can be made for funding from the Condition Improvement Fund (CIF). Whilst CIF funding has been prioritised according to need and so a successful bid is by no means guaranteed, the application process is onerous and time consuming. Generally, only those who have engaged bid professionals have had a high success rate.
Schools with Trustees
There are further considerations for schools with a religious character or who have a foundation which owns the land. There is a general misconception that religious or site trustees own the land but the school or local authority own the buildings on the land, as the buildings will usually have been constructed by the local authority or at least maintained with public funding. However, in law, there is no distinction between the land and the buildings erected thereon and everything will be owned by the site owner.
Schools and academies occupy trustee land at the discretion of the trustees. Land provided by the state will be held on trust for the purposes of the school. Charitable land must be used for the purposes permitted by the trust deed. In the usual way that beneficiaries of a trust are responsible for the upkeep of trust assets they use, the schools are responsible for the upkeep of the land and buildings owned by the trustees. But clearly as the buildings will be charitable property, the trustees have an interest in their upkeep and a responsibility to preserve.
The consent of the trustees is needed to any works being carried out. For voluntary aided schools operating under a diocesan authority (for example, as appropriate, the Diocesan Board of Education for Church of England schools and the Diocesan Bishop for Catholic schools), the SCA is pooled by the diocese and again allocated according to need.
School Rebuilding Programme
As you might expect, there has been a long history of school rebuilding programmes, all with the view to addressing the implications of an ageing estate. The ambitious Building Schools for the Future programme was axed in 2010. Since then, there has been the Priority School Building Programme and now the School Rebuilding Programme.
The DfE has indicated that it will use the SRP, at least initially, to address RAAC remedial works, particularly where this is associated with a broader need to rebuild the school. As with PSBP, the SRP involves both central delivery (where the works are being carried out or being procured by the DfE) and local/self-delivery (where the academy trust or local authority is to be the employer under the building contract and the responsible body for funding purposes).
Over the summer some RAAC works have been completed on a local delivery basis. We may see more of this, just because the ability of the DfE to manage more and more projects will be compromised if an increasingly pessimistic view is taken about the risk of failure of a building with RAAC.
Whilst the DfE has produced model contracts to enable a project to go live quickly, some care needs to be taken to ensure those agreements reflect the interests of the parties involved and do not expose the parties to any unnecessary risk or unanticipated costs. The experience of responsible bodies to manage significant works of this kind will be varied. Further advice will be needed.
Mitigation Measures
In consequence of the DfE’s ramping up of the risk level around measures needed to deal with RAAC, comparisons are already being made with COVID 19 guidance. To a degree this may be helpful as schools should be reminded that the decision to close the whole or part of the school site rests with the headteacher. Clearly no decision to do so will be taken lightly and any closure that will mean children are sent home will be a last resort.
Schools need to be mindful of their duties under the Health & Safety at Work Act 1974 as well as the Employment Rights Act 1996 and Keeping Children Safe in Education. From a legal perspective, the risk of foreseeable harm is much more in focus.
A careful risk assessment will need to be carried out which seeks to protect and prioritise provision. Schools must consider the impact on all pupils, particularly those with SEN, and staff well-being. Whilst there was some comfort during COVID that everyone was in it together, this is very different. That will make the job of deciding the best course of action even more difficult and possibly more susceptible to challenge.
Whilst support is being provided by the DfE, schools may well want to consider getting their own expert guidance on the risk of imminent building failure and any mitigating measures that can be taken, especially where a decision is taken to try to keep classrooms open. The situation is likely to require long term monitoring, as well as the need to be proactive, given it seems unlikely, in view of the funding challenges, that the issues will be fixed in the immediate future.