New Statutory Guidance on opening and closing schools

On 1^st September 2026, new guidance has been issued replacing previous guidance relating to the opening and closing of Local Authority (LA) maintained schools and the free school presumption which required all new schools proposed by LAs to be academies. The new guidance reflects changes introduced by the Children’s Wellbeing and Schools Act 2026.

Although the legislative changes only affect opening new schools, new separate guidance has been issued for the opening of new schools and the closing of existing LA maintained schools. The new guidance can be found here:

• Opening new schools
• Closing Local Authority maintained schools

Arrangements for open academies remain unchanged and any reorganisation will be treated as a “significant change”, applying the “Closure of an academy by mutual agreement” guidance.

New Schools

Whilst it might seem unlikely that new schools are opening in an environment where the number of schools closing, particularly in inner city areas, is starting to make the national headlines, in fact there is growing interest in the opening of new schools. This is partly in response to the continued challenges affecting independent schools, especially schools with a religious character, looking perhaps to close and reopen as a new state funded school and partly a consequence of schools seeking to establish new provision on an existing site. The recent announcement that all secondary schools will be expected to provide for specialist provision on or near to site and the drive to bring special provision more into mainstream has generated some debate about whether that should be a resource unit or inclusion base attached to the school, or a new special school (both state funded and independent).

We have seen a rise in enquiries about leases of recently closed schools to a range of education providers as the sector grapples with changing demographics and the desire to protect education assets.

Local authorities must be satisfied there is a need for any new school include any new special school, and there are no changes to the LA’s obligation to ensure there are sufficient school places under section 14 of the Education Act 1996. Details of the LA’s high needs sufficiency strategy will be contained in the LA’s Local SEND Reform Plan.

Key Changes to Opening New Schools

The main change introduced is the removal of the free school presumption under s7A Education and Inspections Act 2006, which required LA’s to invite proposals for opening an academy (or free school, also an academy) if there was a need for new provision. Any new provision might have come about due to growth or in consequence of any new housing development and the utilisation of section 106 monies.

The repeal of s7A means that LAs are now allowed to invite proposals for different types of school including maintained schools, special schools or alternative provision schools and academies. As well as invite proposals from others, the LA can also make its own proposal, either to open a new community school or an academy. Whilst this might seem to be a departure from the mission for all schools to be academies, in fact any new proposal must demonstrate how the new school will work with other schools and that the expectation is that ultimately the school will join or form a high-quality trust.

Although the guidance does not specifically require this to be a multi academy trust, in reality there are few other options available and no real expectation that there will be a return to the original concept of “trust schools” i.e. foundation schools supported by a separate foundation or trust.

Local Authority Trusts

The new guidance acknowledges the possibility that a local authority may establish its own trust of schools. This has been a running theme since the Schools White Paper in 2022. The language used in the Schools and SEN White Paper in February 2026 makes further reference but as yet no details have emerged. This is not the first time the idea has been tested. We advised Hertfordshire County Council, or more accurately its “schools company” Herts for Learning, on the establishment of an LA controlled academy trust in 2016. Whilst the pilot was successful and a trust was established, the enthusiasm for the idea waned as those involved both from a Central Government and a local delivery point of view struggled with the challenges of managing the inherent conflict of interest given the obvious point that an LA would want to continue to provide support and services (for a fee) to the schools in the trust.

This has been a similar challenge faced by the original sponsors of academy trusts and in light of the Department’s continued focus on strong multi academy trusts as sponsors, almost all the traditional sponsor MATs set up by third party sponsors have lost their sponsors.

It’s probably a case of LA’s “be careful what you wish for”!

Making a proposal or responding to a proposal

Following an invitation to submit a proposal, prospective providers are then able to put forward proposals as outlined in the statutory guidance. Prospective providers must consult on their proposals and both the LA and proposers must demonstrate that an open, fair and transparent process has been followed.

In summary, the different ways to propose a new school under the amended Education and Inspections Act 2006 are as follows:

Site arrangements

In the usual way, the land for any new LA maintained school must be provided by the LA and if an academy, the proposer is expected to be granted the usual academy 125 year lease.

The guidance also makes clear that if the school is to be a new foundation or voluntary school, the LA must transfer its interest to either the trustees of the school (i.e. the Diocesan Board of Education or the Catholic Bishop where the new school has a religious character) or where there are no trustees, then the governing body and that the LA must meet the trustees’ costs involved in the transfer. This is simply a reminder of the statutory provisions of the School Standards & Framework Act 1998.

Whilst there is no equivalent statutory provision for an academy with religious trustees, there is an expectation that the same arrangement will be adopted, though this should be made clear in the consultation and invitation to submit a proposal. The approach is usually justified on the basis that the LA has a duty to ensure there is diverse provision not just sufficient provision. The guidance emphasises local authorities’ duty to carry out an impact assessment from an equalities perspective on the impact of any proposal or invitation as part of the consultation stage to be carried out before any invitation is issued or proposal is formally considered. The guidance notes specifically:

“Local authorities should be mindful that impact assessments should give due regard to all protected characteristics, including religion and belief, and should not make assumptions about how schools with a religious character may or may not promote community cohesion, but rather consider each proposal fairly on its merits. Parliament has legislated to allow schools designated with a religious character to apply faith-based admissions criteria when oversubscribed, and nothing in this guidance should be taken to imply a presumption of negative impact on their contribution to community cohesion. These schools continue to operate under the Equality Act 2010 and the public sector equality duty, which underpin their wider role in promoting respect and inclusion”.

This is of course helpful assurance and perhaps timely given these are questions currently being considered by the Courts in the case of R v Twyford Church of England Academies Trust (and others) CA-2025-002755, which is soon to be heard by the Court of Appeal. A case we are very familiar with.

New voluntary aided schools and the repeal of Section 11

Whilst the assurance regarding VA schools is helpful, clarity around the academy land question for academies with a religious character is now more important than ever given the ability of the LA to invite proposals for an academy, including an academy with a religious character.

Whilst Section 11 of the Education and Inspections Act 2006, which had previously enabled religious bodies and foundations to propose the opening of a new voluntary aided school on land usually provided by the religious trustees or foundation, has been repealed, it has in fact been replaced by a new Section 10.

The guidance makes it clear that the Section 10 process can be used by faith bodies to make a proposal either for a new voluntary aided school either to meet a demand for a specific type of faith provision in an area or to replace an existing provision, including for example where two or more state funded faith schools are merging or there is a proposal to convert a current faith independent school into a new VA school.

As with the previous Section 11, there is detailed guidance on the factors that the LA must consider when deciding on a proposal and minimum requirements that the proposer must demonstrate are being met. It remains crucial that proposers must consider and discuss with the LA at the initial discussion stage the impact of any new school places both on the community and on any existing educational provision, faith or otherwise. The guidance also now makes detailed reference to viability assumptions to ensure any new provision is viable and sustainable.

In the case of proposals to establish a maintained school in place of an existing independent school, the school will need to meet the requirements of the School Premises (England) Regulations 2012. Very limited exceptions to this may be considered under section 543(1) of the Education Act 1996.

Decisions should still be made within 2 months of the end of the representation period.

Proposal Stages

As previously, the key stages of any proposal to open a new school are:

Stage 1 – Consultation

Stage 2 – Publication

Stage 3 – Representation (formal consultation)

Stage 4 – Decision

Please contact us for further information on any new school proposal.