Our Spring briefing provides updates and information on: • Health and safety issues in academies; • Buying services from your own connected company; and • Our appointment to the Crescent Purchasing Consortium Panel. If you require any further information, advice or training on any of the issues discussed within the briefing or have suggestions for topics you would like to see in future briefings please contact any member of our Education Team (contact details at the end of this briefing). Health and safety issues in academies - HSE’s fee for intervention scheme It is now over 16 months since the introduction of the Health and Safety Executive’s (“HSE”) Fee for Intervention Scheme (the “FFI Scheme”) which enables the HSE to recover the costs of its investigations where a material breach of health and safety legislation has been identified. The number of interventions under the FFI Scheme has increased and is likely to continue to do so in future. Academies should have robust health and safety management systems in place to minimise the risk of being served with an FFI notice and ensure an informed response is made if a notice is received. Academies can appeal against FFI invoices but there is a strict 21 day time limit for this so you need to be well organised and consider the merits of an appeal very early on. Health and Safety Obligations for Employers The Health and Safety at Work etc, Act 1974 provides that employers, including academy trusts, must take reasonably practicable steps to ensure that staff, pupils and others who could be affected by an academy’s activities (such as visitors and contractors) are not exposed to risks to their health and safety. This applies to activities on school premises and off site, such as school trips. Managing HSE Intervention under the FFI Scheme The impact of the FFI Scheme will be significant for academies as an intervention under the FFI Scheme can arise from; a planned or unplanned inspection, an accident related investigation, filing of a reportable incident (by an academy or a third party) or in response to a complaint. Under the FFI Scheme HSE inspectors can charge duty holders £124 per hour for the time spent identifying the breach, ensuring the duty holder remedies the breach and becomes compliant. To date, invoices served under the FFI Scheme have averaged at £450, which for many academies means it will be cheaper and easier to pay the fee rather than query it, even if there is an element of uncertainty surrounding the nature of breach identified or value of fees charged. However, the consequences of not challenging a Notice of Contravention could be significant, especially where the HSE subsequently conducts an investigation or is considering bringing a prosecution. Such consequences could include; reputational damage, adverse health and safety record and potential use as evidence of breach/noncompliance arising from HSE’s intervention. It is therefore very important for academies to give careful thought to how they deal with FFI issues and seek specialist advice at an early stage. Buying services from your own connected company Academy trusts must observe and abide by the Public Contracts Regulations (“the Regulations”) when procuring certain types of contracts for works, services or supplies above specified financial thresholds unless they are exempt or excluded. One such exception is known as the “Teckal” exemption which establishes a general exception to the need to apply the Regulations to cases where academies procure contracts for the provision of services to “in house” providers. In light of the current efficiency drive, many academies are considering means to enable them to work more collaboratively to improve standards, share resources, facilities, ideas and operate more efficiently and effectively. There are several models academies can consider to do this, one of which may be to establish a company to provide services and, or, supplies to an individual academy or group of academies to benefit from, for example, improved terms for bulk purchasing. If it is intended that the company will only provide services to the academies establishing it, it may be advantageous for the academies to consider a structure which will enable them to benefit from the Teckal exemption and to directly award contracts to the company without needing to go out to competitive tender. The two basic limbs of the Teckal exemption are: • The academy trust exercises a control over the company which is similar to that which it exercises over its own departments; and • At the same time, the company carries out the essential part of its activities with the academy trust. If an academy can make out these two tests it may be able to award contracts to the company without following a competitive procedure under the Regulations. Practical Issues: If an academy is, or a group of academies are, considering establishing a Teckal company to deliver supplies/services to its members the following should be considered: • the latest case law on the extent to which the academies must organise themselves to benefit from the Teckal exemption; • whether an agreement is necessary to determine matters such as the objectives of the corporate entity, the allocation of share capital, and the governance arrangements including, how directors will be appointed to the board and how decisions of the board will be made; • whether an academy has the power to establish the relevant corporate entity. In other words- is it within the scope of the academy’s Articles of Association and in particular their charitable objects?; • the requirements on academies set out in their Financial Regulations and the Academies Financial Handbook 2013 in relation to obtaining best value; and • whether the Department for Education has any particular requirements regarding the structure of the company which must be complied with? Crescent purchasing consortium We are delighted to announce that following a competitive tender we have been appointed to the Crescent Purchasing Consortium (CPC) framework, a procurement consortium for the education sector. The framework allows you to appoint us directly, without any further need for competition, to provide a variety of legal advice including property, human resources, academy conversion, post conversion support and other legal services. This is on the basis that CPC has already undertaken the competition on your behalf. Academies can access the panel for no charge via the following link: http://www.thecpc.ac.uk/.