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Department for Education updates governance guidance for FE and sixth-form colleges

On 2 August 2023, the Department of Education (DfE) updated its governance guidance for FE and sixth-form college corporations. First published in June 2022, the purpose of the guidance is to provide support and assistance to governors with regards to their duties and responsibilities by reinforcing key governance requirements, in accordance with the legal and regulatory framework, and associated good practice.

This article explores the purpose of the guidance, identifies the most recent updates and considers opportunities for internal review and reflection, to ensure the maintenance of 'good governance' within FE and sixth-form colleges.

Who does the guidance apply to?

The guidance is intended for governors/trustees of FE corporations and sixth-form college corporations in England, established by the Further and Higher Education Act 1992 and operating as exempt charities. The guidance is also useful for governance professionals, senior college staff, auditors and college inspectors. Notably the guidance is not applicable to sixth-form academies, who are instead encouraged to refer to the Governance handbook for academy trusts a maintained schools, a copy of which is available here: Governance handbook. The guidance is also not intended for independent learning or independent specialist providers, though some aspects of the guidance maybe beneficial to designated institutions.

What does the guidance cover?

A key theme in the guidance relates to the significance of members of an FE or sixth form college board understanding their role as charity trustees and the associated obligations arising from charity law. Moreover, the guidance reminds that the primary responsibilities of a board are as follows:

• "determining or, for Catholic sixth-form colleges, preserving and developing your college's educational character
• setting and communicating your college's strategy and goals
• holding executive leaders to account for the educational performance and quality of your college, and for the performance of staff
• exercising effective control to ensure that funds and assets are protected, your organisation remains solvent and legal obligations are met."

Amongst other aspects, the guidance goes on to outline other essential considerations relating to:

• recruiting and developing governors;
• payments to governors and other personal benefits;
• making decisions and managing conflicts of interest;
• financial obligations;
• the role of the principle;
• executive pay;
• regulation, support and intervention, including interaction with the DfE, Education & Skills Funding Agency (ESFA), Charity Commission and FE Commissioner.

What is new in the guidance?

Key amendments to the guidance include replacing references to 'funding agreements' with 'accountability agreements', to align with the requirements of the ESFA. Such agreements set the requirements FE and sixth-form colleges must adhere, to such as:

• financial health and control;
• education performance standards;
• quality assurance;
• public accountability;
• the welfare of students.

Amendments have also been made to the equality, diversity and inclusion section of the guidance, to provide increased clarity with regards to FE and sixth-form colleges Public Sector Equality Duty obligations. The guidance emphasises that FE and sixth-form colleges must have due regard for the need to:

• eliminate discrimination; and,
• advance equality of opportunity and foster good relations between people who share a protected characteristic and those who do not.

FE and sixth-form colleges must publish clear equality objectives and ensure they are in a position demonstrate how they are meeting such standards. This addition is intended to compliment pre-existing commentary with regards to legal obligations owed by FE and sixth-form colleges as a result of the Equality Act 2010, such as the obligation to reasonable adjustments for disabled students and touches upon protections to owed former students in specific circumstances, amongst others.

The updated guidance now provides a link to the Education and Training Foundation's qualifications for governance professionals, which was commissioned by the DfE to deliver a learning framework for governance professionals of FE and Sixth-form college governing bodies.

Finally, the guidance provides further information with regards to the DfE's expectations with regards to asset disposal. The purpose of this is to provide additional resources in support of the procedure FE and sixth-form colleges must adhere to when disposing of fixed assets, which is in essence that colleges can dispose of fixed assets without the need of approval from the DfE, however this subject to:

• the proposed disposal not being novel, contentious or repercussive, and
• maintaining the principles of regularity, propriety and value for money.

What do we recommend now?

In light of the recent updated guidance, FE and sixth-form college boards are encouraged to reflect on the guidance and their governance arrangements, particularly with regards to the suitability of existing funding arrangements and undertaking initiatives to help support with the delivery of equality objectives and strategies for promoting equality, diversity and inclusion. For example, FE and sixth form colleges are advised to complete the DfE's annual surveys of governors, which seeks to provide a national picture of diversity on college corporation boards.

With the new academic year due to begin, FE and sixth-form college boards may also find it a beneficial time to review, codes of conduct to ensure that they continue to reflect good practice in accordance with regulatory guidance.

For more information contact Gemma Duxbury in our Education department via email or phone on 0333 207 4239. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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