The following guide summarises the key requirements that members and boards of academy trusts must satisfy when making decisions.
Context
Understanding and following the correct decision-making procedure is key if an academy trust is to be governed effectively and avoid unnecessary scrutiny by others including the Education and Skills Funding Agency.
Framework
An academy trust is a company limited by guarantee with exempt charity status, constituted with articles of association ("articles"). The articles will generally follow the Department for Education (DfE) model articles and this guide reflects the requirements of the latest version updated on 22nd December 2017.
Decision-making by the members and board of trustees (the "board") of an academy trust is governed by the articles and otherwise by the Companies Act 2006 ("Act"). Those decisions are often referred to as resolutions and so this terminology is used below.
Member resolutions
Where are resolutions passed?
The members ordinarily pass resolutions at members' meetings, either:
- an annual general meeting ("AGM"), if the articles include provision for those to be held (the first AGM should take place within 18 months of incorporation and thereafter not less than 15 months should pass between each AGM); and
- other general meetings convened at any time by the trustees under the articles or at the direction of the members under the Act.
Can the members pass resolutions without a meeting?
Yes. The members may agree a resolution in writing where this has been sent to every member and the resolution is approved by the requisite number of members as though the resolution was passed at general meeting (which includes an AGM). There are strict rules about timelines which must be followed for a members' written resolution to be valid. The resolution may be circulated by email then signed, dated and returned by email or in hard copy. The members do not all have to sign the same piece of paper. In circumstances where a face-to-face meeting is impractical, such as where social distancing restrictions apply, the ability for the members to make decisions in this way is invaluable.
Can the members meet by telephone or video conference?
There is no authority under the DfE model articles for the members to meet remotely, There is a requirement for a member to be present in person or by proxy (i.e. someone authorised to vote on behalf of the member).
However, the articles can be amended to permit remote meetings, and in any event if all the members agree to meet remotely then that agreement will take precedence over the wording of the articles.
What is the procedure for calling a meeting?
Under the DfE model articles, a general meeting (including an AGM) can be called on not less than 14 clear days' notice (or on shorter notice if 90% of the members agree) sent to the members, trustees and to the auditors. The notice must specify if the meeting is an AGM or general meeting, the time and place of the meeting, the general nature of the business to be dealt with, any intention to propose a special resolution or resolution requiring special notice and the terms of that resolution.
How are resolutions passed?
Resolutions are passed by the members exercising one vote each and ordinarily on a show of hands, although a poll (where each member votes in writing in a secret ballot) may be demanded by the chair, at least two members or at least 10% of the members.
Resolutions are passed as ordinary or special resolutions. Ordinary resolutions, requiring majority approval, suffice for most decisions while special resolutions, requiring approval by 75% of the members, are required to change the articles or name of the academy trust or appoint/remove additional members.
Resolutions are validly passed where the meeting is quorate (which ordinarily requires a minimum of two members) and where proper notice of the meeting has been given, as set out above. In each case, a declaration by the chair of the meeting that a resolution has been carried and an entry to that effect in the minutes of the meeting is conclusive evidence that the resolution has been passed.
Particular voting restrictions apply in the case of academy trusts, whereby the votes of members who are Local Authority Associated Persons cannot in aggregate exceed 19.9% of the total votes cast.
What is the procedure once a resolution is passed?
Minutes must be kept of each member meeting and be signed by the chair of the meeting.The minutes must then be kept at the academy trust's registered office, or a place notified to Companies House, for at least ten years from the date of the meeting.
All special resolutions must be filed with Companies House within 15 days.
If a resolution is passed appointing a new trustee, the relevant form must also be filed at Companies House within 14 days.
Board resolutions
Where are resolutions passed?
Resolutions are ordinarily passed at a meeting of the trustees.
Can the trustees pass resolutions without a meeting?
Yes. A resolution in writing is passed where it is signed by all of the trustees . The resolution may be circulated by email then signed, dated and returned by email or in hard copy. Again, the ability of trustees to make decisions in this way is invaluable where face-to-face meetings are impractical for example because of social distancing restrictions.
What is the procedure for calling a meeting?
Meetings of the trustees are convened by the clerk or company secretary who must comply with a direction given by the trustees, by any three trustees or by the chair (or, in their absence, the vice-chair) to convene a meeting. Each trustee must be given at least seven clear days' notice of the meeting together with a copy of the agenda although the chair (or, in their absence, the vice-chair) may determine that the notice and agenda may be given within such shorter period where there are matters demanding urgent attention.
Can the trustees meet by telephone or video conference?
Yes. The trustees may hold meetings by telephone or video conference provided details of the conferencing facilities have been circulated at least 48 hours in advance and all trustees have access to the appropriate equipment.
How are resolutions passed?
Resolutions are passed by a majority vote of the trustees where each trustee has one vote, although the chair has a further casting vote where there is an equal division of votes.
Again, particular voting restrictions apply, whereby the votes of trustees who are Local Authority Associated Persons cannot in aggregate exceed 19.9% of the total votes cast
What is the procedure for passing resolutions at meetings?
A quorum must exist in order for resolutions to be validly passed. A quorum exists where any three trustees or, where greater, any one third (rounded up to a whole number) of the trustees are present and entitled to vote.
However, special quorum requirements apply on a vote to remove a trustee or the chair where two thirds of the trustees are required. Also a resolution to remove the chair or vice-chair from office does not have effect unless: it is confirmed by a resolution passed at a second meeting held not less then fourteen days after the first meeting; and the chair or vice-chair's removal is specified as an item of business on the agenda for each of those meetings.
Whether a trustee is entitled to vote or counts toward the quorum turns on the question of whether that trustee may have a conflict of interest.
What is the procedure once a resolution is passed?
The trustees must ensure that minutes are taken of all proceedings and that the academy trust keeps a written record, for at least ten years from the date of the resolution.
Closing remarks
The articles lay down a clear procedure for decision-making by the members and board of trustees of an academy trust which, if followed, will avoid unnecessary scrutiny by others including the Education and Skills Funding Agency ("ESFA") and so avoid time-consuming correspondence, investigations and checks with/by the ESFA which will needlessly divert the energy and attention of the academy trust.
The decision-making procedure also allows the members and board of trustees of an academy trust to make decisions without meeting in person which, in the case of social distancing, is invaluable.
Originally published by Wrigleys Solicitors, June 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
