ACADEMIES SECTOR UPDATE

ACADEMIES SECTOR UPDATE

In a break from the usual COVID-19 relates updates at present, we wanted to alert academies to some key reporting developments for their end of year trustees’ report as well as highlight a couple of new funding opportunities available and provide a reminder about watching out for leases.

New reporting requirements in trustees’ reports

When the Academies Accounts Direction 2019-2020 (AAD 19-20) is published by the ESFA over the coming month or months, for some academies there will be some important new statements and narrative required to be included in the trustees’ reports for the year ending 31 August 2020. Some of these new requirements may be quite onerous for some, so it’s important for trustees and management teams to start looking at these sooner than later.

Reporting on promoting the success of the academy

Under The Companies (Miscellaneous Reporting) Regulations 2018, all large companies, as defined by the Companies Act 2006, must include a statement in their strategic report describing how they have promoted the success of the company having regard to the need to foster the company’s business relationship with suppliers, customers and others.

For academies, as charitable companies, they will qualify as large for the purposes of this reporting if they satisfy two or more of the following:

• gross annual income of more than £36m.
• gross (total) assets of more than £18m.
• more than 250 employees.

Under section 172(1) of the Companies Act 2006, the trustees, as directors of a company, must act in a way most likely to promote the success of the company, and in doing so must have regard to:

• the likely consequences of any decision in the long term.
• the interests of the company’s employees.
• the need to foster the company’s business relationships with suppliers, customers and others.
• the impact of the company’s operations on the community and the environment.
• the desirability of the company maintaining a reputation for high standards of business conduct.
• the need to act fairly as between members of the company.

The Department for Business, Energy & Industrial Strategy (BEIS) has published guidance on this new reporting requirement which can be found here.

The Charity Commission has also published a guide: Charities SORP Information Sheet 3: The Companies (Miscellaneous Reporting) Regulations 2018 and UK Company Charities, which can be found here. This explains that charitable companies (which includes academies) should take “promoting the success of the company” to mean promoting the success of the charity (i.e. academy) to achieve its charitable (i.e. educational) purposes.

Reporting on your engagement with employees

For academies with more than 250 employees, trustees must now also include a statement in their trustees’ report summarising how they have engaged with employees, and how they have had regard to employee interests, and the effect of that regard, including on the principal decisions taken by the academy during the financial year.

The statement must describe the action that has been taken during the financial year to introduce, maintain or develop arrangements aimed at:

• providing employees with information on matters of concern to them.
• consulting employees or their representatives regularly so that the views of employees can be taken into account in making decisions which are likely to affect their interests.
• encouraging the involvement of employees in the company’s performance.
• achieving a common awareness on the part of all employees of the factors affecting the performance of the company.
• its policy in respect of applications for employment from disabled persons, the treatment of employees who become disabled and the training, career development and promotion of disabled person.

As detailed above, BEIS has published guidance on this new reporting requirement and the Charity Commission’s Charities SORP Information Sheet 3 also covers this new reporting requirement.

Energy and carbon reporting

The final, and probably the most significant, new reporting requirement relates to the streamlined energy and carbon reporting required in the trustees’ report under the Companies (Directors’ Report) and Limited Liability Partnerships (Energy and Carbon Report) Regulations 2018.

These regulations require large companies which consume more than 40,000kWh of energy in a reporting period to include certain information about energy efficiency measures. The definition of a large company for these purposes is as defined in the Companies Act 2006, which is detailed earlier in this update.

The information required to be disclosed includes the following:

• its energy use and emissions.
• an emissions intensity ratio, which expresses the academies annual emissions in relation to a quantifiable factor associated with its activities.
• methodologies used in the calculations of disclosures.
• measures taken to improve energy efficiency in the period.

In determining whether the 40,000kWh threshold is met, academies must consider, as a minimum, all the energy from gas, electricity and transport fuel usage they are responsible for.

If the threshold is met during the reporting period, but the trust does not meet the large company criteria, then no statement is required in the trustees’ report. However, a statement including all the required information will need to be published on the academy’s website by 31 March 2021.

If an academy consumes less than 40,000kWh of energy in the reporting period, whether its also deemed to be large or not, it does not need to include any statement in the trustees’ report or on the website provided that the trustees’ report states the reason why this information has not been disclosed.

Where it is not practical for an academy to calculate the required energy usage information, this should be reported and it should also explain what steps it is taking to calculate this information in the future.

The Government has published guidance on how to approach these new disclosure requirements which is available here.

The ESFA will also be publishing further guidance in the future which may also assist academies in complying with this requirement.

Trust Capacity Fund

The Trust Capacity Fund (‘TCF’) 2020 to 2021 was announced by the DfE on 6 February 2020 and will provide two funding rounds during 2020 as follows:

• The first funding round opened on 6 April 2020 and will close on 31 July 2020, with all applications being assessed during this period.
• The second funding round will be between 1 September 2020 and 31 December 2020, with all applications again being assessed during this period.

An important key date to note with this funding is that it must all be spent by 31 March 2021. If it is not spent by this date, then there will be a risk of clawbacks of the funding.

The TCF 2020-21 has 5 funding strands as follows:

• A1: to support strong trusts to grow and innovate in areas of long-standing need (funding of £50,000 to £310,000).
• A2: to encourage strong trusts to grow by converting and improving weaker maintained schools or adding vulnerable academies to their trust and improving them (funding of £50,000 to £200,000).
• B: to accelerate the development of mid-sized trusts with the potential to be strong (funding of £50,000 to £150,000).
• C: to create new strong trusts either by single academy trusts joining larger trusts or by supporting the growth of existing trusts via mergers or priority projects identified by Regional Schools Commissioners (funding of £50,000 to £100,000).
• D: to support outstanding or good local authority maintained rural schools to collaborate and create new, strong multi-academy trusts (funding of £50,000 to £100,000).

Applications for TCF must be linked to a successful growth proposal, approved by the relevant Regional Schools Commissioner, in order to be eligible.

The TCF uses a two-stage application process. Stage one will use published criteria to determine whether a trust is eligible to apply, and under which strand of the fund. Once an eligible trust makes an application for funding, the RSCs will undertake a stage two assessment, evaluating each project on the information contained within the application. RSCs will make a final decision on whether the trust should be funded.

To be eligible, your trust fit the following criteria:

• A1 and A2: your trust is 5 or more schools and does not have an open Financial Notice to Improve (FNtI). It must also meet at least two further criteria in relation to school improvement, progress, and English Baccalaureate criteria.
• B: Your trust is 3 or more schools and has no open FNtI.
• C: You do not have an open FNtI.
• D: You must be a rural school and also meet a number of educational metrics (as detailed in the guidance).

As expected, there are a number of activities that are not eligible for the funding and there are some very clearly defined outputs for the projects.

Further information on the TCF, including eligibility trackers for the various strands and application forms, can be found here.

Exemplary leadership programme

The DfE has published a Prior Information Notice (PIN) setting out its intention to engage a minimum of two outstanding schools to design and deliver bespoke leadership training programmes. The details on the programme can be found here.

The opportunity will provide grant funding to the schools to deliver 3-year pilot programmes up to a maximum value of £250k per annum, subject to continued government funding and successful annual delivery. Successful grant applications will reflect a knowledge-rich curriculum, direct instruction and a strong focus on behaviour management.

The DfE is hosting discussion on the programme on 12 May 2020 and interested parties can sign up for this by accessing the link above.

A reminder about finance leases and issues to look out for

Leases are generally classified as “operating” or “finance” leases. Due to the complexity of some lease agreements, determining which type of lease you have can cause issues.

Under the Academies Financial Handbook (‘AFH’), academies are unable to enter any form of borrowing arrangement without specific approval from the Secretary of State (SoS), and this extends to finance leases as they are a form of borrowing. Unless the borrowing is from government approved initiatives like Salix loans or public works loans, approval from the SoS is very unlikely to happen. Identifying the difference between an operating and finance lease is therefore crucial.

So, what is a lease? Under the accounting standards, a lease is defined as “an agreement whereby the lessor conveys to the lessee in return for a payment or series of payments the right to use an asset for an agreed period of time”. Some difficulty arises as some arrangements may not take the legal form of a lease but may nevertheless still meet the substance of the definition. The important consideration here is whether “the agreement conveys the right to use a specific asset in return for payments”.

If you establish you do have a lease, then what’s difference between an operating lease and a finance lease? Under the accounting standards, a finance lease is one which “transfers substantially all the risks and rewards incidental to ownership”. Conveniently, an operating lease is anything that isn’t a finance lease!

So, how do you then tell if a lease (or an agreement) is a finance lease? The accounting standards helpfully provide some examples of key indications of finance lease as follows

• the lease transfers ownership of the asset to the lessee by the end of the lease term;
• the lessee has the option to purchase the asset at a price that is expected to be sufficiently lower than the fair value at the date the option becomes exercisable for it to be reasonably certain, at the inception of the lease, that the option will be exercised;
• the lease term is for the major part of the economic life of the asset even if title is not transferred;
• at the inception of the lease the present value of the minimum lease payments amounts to at least substantially all of the fair value of the leased asset;
• the leased assets are of such a specialised nature that only the lessee can use them without major modifications.

The Education and Skills Funding Agency (ESFA) has also previously issued some leasing guidance for academy trusts, which are helpful and can be found here.

If you do breach the AFH by entering a finance lease, then the ramifications are potentially serious. This will be considered a “regularity” issue and while the ESFA could impose a financial notice to improve, the most likely scenario is forcing the academy to exit the agreement by paying for the assets outright. You may also have to endure additional scrutiny from the ESFA and possible visit from a Schools Resource Management Advisor.

The key reminder here is never sign an agreement that you don’t fully understand and if in doubt, then seek some advice from your professional advisors or auditors.

Want to know more?

If you have any questions on any of the details included in this update or just want more information, guidance or advice in relation to your academy during this challenging time, then please contact any of our academy sector specialists – Simon Atkins, Andy Jones, or Sarah Chambers

The guidance has been provided for general information purposes only. Whilst every effort has been made to ensure its accuracy, Cooper Parry specifically disclaims any liability for any loss, damage or expense of whatsoever nature which is caused by your reliance on the guidance.